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60TII Congress, { SENATE. (Document 

1st Session, j [ No. 398. 



REPOKT ON CERTAIN INDICTMENTS FOKMEliLY FOUND AGAINST D. 
H. JOHNSTON, P. S. MOSELY, GEORGE MANSFIELD. J. F. McMURRAY, 
AND MELYIN CORNISH, AND LATER DISMISSED. 



L E T T E K 



THE ATTORNEY-GENERAL, 

SUBMITTING, 

PURSUANT TO SENATE RESOLUTION OF MARCH 3, 1908, A REPORT 
WITH REFERENCE TO CERTAIN INDICTMENTS FORMERLY 
FOUND AGAINST D. H. JOHNSTON, P. S. MOSELY, GEORGE MANS- 
FIELD, J. F. M'MURRAY, AND MELVIN CORNISH, AND LATER 
DISMISSED. 



March 19, 1908. — Referred to the Committee ou ludiau Affairs and ordered to 

be printed. 



Department of Justice, 
Office of the Attorney-General, 

Washington, D. C, 'March 17, 1908. 

Sir : By direction of the President I hereby submit a report on the 
subject-matter of the resolution of the Senate of the United States 
dated March 3, 1908, and received by me on March 4, 1908, with 
reference to certain indictments formerly found against D. H. John- 
ston, P. S. Mosely, George Mansfield, J. F. McMurray, and Melvin 
Cornish, and later dismissed. 

It appears from the records of this Department that about the 25th 
day of June, 1905, information was received that the firm of Mans- 
field, McMurray & Cornish, who had been the attorneys for the Choc- 
taw and Chickasaw nations of Indians, and, as such, had resisted, on 
behalf of said nations, the applications of numerous persons for citi- 
zenship in the said tribes before the citizenship court, together with 
the governors of the said two nations, had been indicted for the 
alleged misappropriation of tribal funds by the grand jury of the 
southern district of the Indian Territory. This indictment had been 
found by the said grand jury under the advice of one W. B. Johnson, 



^X'^ ]() 



2 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

then United States attorney for the said district. Soon afterwards 
the attention of the Department was called by the President to com- 
plaints that this indictment was not supported by the evidence sub- 
mitted to the grand jury; that the grand jury itself, or some members 
thereof, were hostile to the defendants, and shared a prejudice against 
them i^revailing among the white inhabitants of the Choctaw and 
Chickasaw territory and the adjoining district of Texas, arising from 
the fact that several thousand such persons had been foiled in attempts 
to procure their enrollment on the tribal rolls of the Indians in ques- 
tion through the efl'orts of the said counsel, at an estimated saving 
to the genuine Indians of some $15,000,000, and that the Un,ited 
States attorney had been actuated in his official conduct by personal 
enmity to the accused, arising mainly from the fact that they had 
replaced him as counsel for the said tribes of Indians. By direction 
of the President an inquiry was ordered into these charges and com- 
plaints, and Mr. Charles W. Kussell, now Assistant Attorney-General, 
was ordered by Attorney-General Moody to conduct said inquiry. 

It is suggested in the first paragraph of the resolution proper that 
Special Agent John S. Mosby, of this Department, had been instru- 
mental in causing the said indictment to be found, but this appears 
to be a misapprehension, founded apparently upon his having investi- 
gated the charges against United States Marshal Benjamin H. Col- 
bert, of that district, and certain other parties against whom indict- 
ments were found about the same time, and also to the fact that Mr. 
Mosby was then present in the Territory and informed of the pro- 
ceedings before the grand jury. It does not at all appear from the 
records of the Department that he was authorized to act in any 
official capacity with regard to the subject-matter of the resolution 
now under consideration; he appears, however, to have believed the 
defendants guilty. 

After a prolonged and very careful investigation Mr. Russell 
reported to the Attorney-General that, in his judgment, the indict- 
ment ought not to have been found, and ought to be dismissed, and 
on December 6 Attorney-General Moody directed the United States 
attorney for the southern district of the Indian Territory to dismiss 
the said indictment unless he had found some reason to the contrary 
since his return to the Indian Territory, he having previously visited 
Washington for consultation with the Attorney-General on this sub- 
ject. On the same day Mr. Johnson telegraphed to the effect that he 
was expecting further information on the subject, and this informa- 
tion he sent on December 13 in a letter and telegram, of which I 
inclose copies, marked Exhibits ''A" and '* B." On December 17 
he stated in another telegram that he was convinced of the guilt of 
the accused. 

It is understood that the Department of the Interior desired the 
prosecution to be continued, and in view of this fact, and inasmuch 
as Mr. Johnson's term of office would expire within some six weeks^ 
it was determined not to dismiss the indictments, but to cause a 
further investigation to be made by the succeeding United States 
attorney, Mr. George E. Walker, who was appointed on February 1, 
1000. In the meantime — that is to say, on December 18, 1905 — the 
President had directed the removal of Mr. Johnson, but on the same 
day revolted the order. The two announcements were made, in accord- 
ance with custom, through this Department, but the cause of the 

APR 13 u:^ > 

(TV -J. r> 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 3 

action in each case is not disclosed by its records. Nothing further 
appears with respect to the case until on April 9, 1907, a report was 
received from Mr. George R. Walker, United States attorney for the 
southern district of the Indian Territory, a copy of which is herewith 
inclosed, marked " Exhibit C." As will be observed, this elaborate 
report concludes with the statement : 

I therefore respectfully inform yon tliat I am prepared to take the official 
and professional responsibility of dismissing the indictments, unless there is 
some fact known to the Department at Washington or some conclusion arrived 
at by the Department that has not occurred to me. 

On receijot of this report I telegraphed Mr. Walker as follows : 

Take no further action in prosecution against Mansfield and others until 
further instructed by Department. 

Simultaneously I telegraphed to Mr. W. S. Gregg, a special assist- 
ant of this Department, then engaged in another investigation in the 
Indian Territory, to proceed as soon as possible to Ardmore, in order 
to investigate the case and make a full report thereon to the Depart- 
ment, and on the day following I addressed a letter to the Secretary 
of the Interior in the words following : 

Dear Mr. Secretary : I inclose herewith a copy of United States Attorney 
Walker's letter in regard to the prosecution against Mansfield and others. 

inclosing a copy of Mr. Walker's letter. 

On May 1 the Secretary of the Interior wrote as follows : 

Dear Mr. Bonaparte : Referring to your letter of April 10, relative to the 
prosecution against Mansfield and others, I am clearly of the opinion, after 
conference with Mr. Leupp, that the case should be vigoi'ously prosecuted de- 
spite the letter of the district attorney. 

On the same day Mr. W. S. Gregg submitted his report, a copy of 
which is herewith transmitted, marked " Exhibit D," The conclud- 
ing paragraph of this report, as will be noted from an examination 
of the said exhibit, was as follows : 

In view of all the evidence presented to the grand jury, the allegations in the 
indictment, and after a careful examination of the books and papers of Mans- 
field, McMurray & Cornish, I have reached the conclusion that the Government 
could not hope to be successful in prosecuting the case to a final determina- 
tion. As to whether or not additional evidence could be obtained upon a trial of 
the case is a question which it is impossible to determine at this time, but with 
the evidence now at hand, and with no prospects of obtaining anything in addi- 
tion thereto, I feel confident that the facts do not justify a further prosecution 
on this indictment, and I have the honor to recommend that the United States 
attorney be directed to dismiss the proceedings. 

On May 2 a copy of this report was forwarded to the Secretary of 
the Interior. On May 8 he replied as follows : 

I inclose herewith a copy of a memorandum prepared in the Indian Otfice re- 
garding the suit against D. H. .Johnston, P. S. Mosely, George Mansfield, J. F. 
McMurray, and Melvin Cornish. Under the circumstances I think it will be 
necessary to abandon it. 

A copy of the memorandum annexed to this letter is herewith in- 
closed, marked " Exhibit E," and, as will be noted, it concludes : 

I have carefully analyzed Mr. Gregg's report and, in view of what is said 
therein, I am firmly convinced that the indictment should now be dismissed, and 
I so recommend. 

On receipt of this letter, and after having consulted with the Presi- 
dent personally, I wrote, as directed by him, on May 9, to Mr. Charles 



4 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL, 

Nagel, of St. Louis, asking if he would serve as special counsel to 
make an investigation of this case, advising the Department whether 
the prosecution should or should not be abandoned, and if, in his 
judgment, it should be pressed, conduct the trial on behalf of the 
Government. Mr. Nagel accepted this appointment, and was fur- 
nished, at his request, with all the papers on file in this Department, 
or in the Department of the Interior, bearing upon the question, 
and, under date of June 24, 190T, he submitted his report, a copy of 
which is herewith inclosed and marked ■■' Exhibit F." An examina- 
tion of this carefully prepared and thoroughly impartial review of 
the case presented by the documents will show^ that Mr. Nagel says : 

Upon he wbole, therefore, my coucliisiou is this : In so far as the indictment 
relies upon the bald circumstances that the acts of the Chickasaw Nation were 
not approved by the President, or that the expense accounts rendeied by the 
attorneys were not properly itemized, the indictment can not. in my opinion, be 
sustained. 

If I am to pass upon the remaining questions of fact in the light of the 
documents before me — that is, the testimony before the grand jury and Mr. 
Gregg's conclusions — then I also recommend the dismissal of the indictment. 

This report was received by the Department on June 29, and on 
that day I acknowledged its receipt as follows: 

I am in receipt of your very interesting report of the 24th instant, but have 
not yet had time to give it more than a hasty perusal. I will give it more care- 
ful consideration at the earliest opportunity, and will write you later. 

A copy of Mr. Nagel's report was duly forwarded to the Secretary 
of the Interior on June 29. On September 5 a reply was received, 
inclosing a letter from the Acting Commissioner of Indian Affairs, 
copies of both of which communications are inclosed herewith, 
marked, respectively. Exhibits " G " and '' H." By reference thereto 
it will be seen that the Indian Office says : 

It is believed that no good purpose would be served by bringing to trial Mans- 
field, McMurray, and C(n-nish, and the others indicted with them, and it is 
therefore recommended that the Department of Justice be requested to instruct 
the proper United States attorney to dismiss the indictment. 

It will also be seen that the Acting Secretary of the Interior says, 
" I concur in the recommendation that the indictment referred to be 
dismissed." 

Notwithstanding the successive recommendations of Messrs. Rus- 
sell, Walker, Gregg, and Nagel that the indictments in question be 
dismissed, and the approval of this recommendation by the Indian 
Office and the Department of the Interior, this Department held the 
question of such dismissal under advisement until November 13, 1907, 
when I sent the following telegram to Mr. Nagel : 

Have decided to, direct district attorney to secure dismissal of indictments 
against Mansfield, McMurray, and Cornish. Action taken after full consulta- 
tion with authorities Interior Department. 

On the same day I instructed Mr. Walker to dismiss the indict- 
ments, and, in the same telegram, called his attention to the impor- 
tance of taking this action before the proclamation should be issued 
admitting Oklahoma to statehood, since the court in which the in- 
dictments were pending would be deprived of any jurisdiction over 
them, if action were delayed until after the Territory had become a 
State. On the day following, November 14, I was informed by a 
telegram from Mr. James E. Humphrey, assistant United States 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 5 

attorney (Mr. Walker being absent), that the indictments had been 
dismissed. 

I now submit a review, in detail, of the several paragraphs of the 
resolution and its preamble. 

The first paragraph of the preamble of the said resolution is as 
follows : 

Whereas it is alleged that on the twenty-fourth day of June, nineteen hundred 
and five, a grand .inry of the United States of America, duly selected, sum- 
moned, impaneled, sworn, and charged to inquire fully in and for the body of 
the southern district of the Indian Territory in the name and by the authority 
of the United States of America, did, upon the oaths of the members thereof, 
find, present, and charge that one D. H. Johnston, one P. S. Mosely, one George 
Mansfield, one J. F. INIcMurray, and one Melvin Cornish, and others to the 
grand jurors unknown, on certain days in the year nineteen hundred and two, 
within the southern district of the said Indian Territory, did unlawfully and 
feloniously commit the crime of conspiracy to defraud (an offense against 
the laws of the United States) by defrauding the Chickasaw Nation out of the 
sum of twenty-eight thousand eight hundred and seventy-six dollars and ninety 
cents, the exact amounts fraudulently obtained from the Chickasaw Nation 
and the exact times and places where and when the said fraudulent transac- 
tions occurred being set out in said indictment. 

The alleged statement embodied in this paragraph is substantially 
correct. The second paragraph of the said resolution is as follows : 

And whereas it is alleged tliat on or about the fifteenth day of December, 
nineteen hundred and five, the Attorney-General of the United States did di- 
rect one W. B. Johnson, then United States attorney for the southern district 
of the Indian Territory, to dismiss, by entering a nolle prosequi in said case, 
the said indictment. 

The alleged statement contained in this paragraph is inaccurate. 
On December 6, 1905, the then Attorney- General, Hon. William H. 
Mood}', sent a telegram to W. B, Johnson, then the United States 
attorney for the southern district of the Indian Territory, in the 
words following: 

Dismiss indictment of Mansfield, McMurray, Cornish, Johnston, and Mosely. 
unless you have, since your return, found some reason to the conti'ary. 

The third paragraph of the said preamble is as follows : 

And whereas it is alleged that the said W. B. Jolmson refused to dismiss the 
said indictment as directed by the Attorney-General of the United States. 

The alleged statement contained in this paragraph is likewise in- 
accurate. On December 6, 1905, the said W. B. Johnson replied to 
the telegram of the same date of the Attorney-General, as follows : 

Your telegram this date directing dismissal case against Mansfield, McMur- 
ray, and Cornish, et al., received. Will await some information which has been 
unavoidably detained and then advise you. 

On December 8 a telegram from Mr. Cecil A. Lyon to the Presi- 
dent was referred to the Department of Justice. This telegram was 
as follows: 

In spite report Attorney-General cases against Johnston, McMurray. et al. not 
dismissed Ardmore, Ind. T. Please so direct. 

On December 10, 1905, the Attorney- General sent the following 
telegram to Mr. Johnson: 

Information referred to in your telegram must be sent at once. Am anxious 
to end this matter. Answer. 

In reply to this message two telegrams and a letter were sent 
explaining reasons for delay and furnishing some items of the prom- 



6 INDICTMENTS FOUND AGAINST D, H. JOHNSTON ET AL. 

ised information, and on December 17 the following telegram Avas 
received from United States Attorney Johnson : 

From the evidence before grand jury I believed defeud.iuts guilty. The book 
and statements of defendants explained away our chief evidence of conspiracy, 
defendants claiming warrants delivered to Johnston in satisfaction of personal 
advancement. Statement of bank shows this claim untrue. Think evidence on 
hand will warrant conviction of all defendants. 

The fourth paragraph of the above-mentioned preamble is as 
follows : 

And whereas it is alleged that the Attorney-General of the United States on 
or about the fifteenth day of January, nineteen hundred and five, removed the 
said W. B. Johnson from office, said removal being by telegraphic communica- 
tion, and said removal being based upon the refusal of the said W. B. Johnson 
to carry out the directions of the Attorney-General of the United States. 

The alleged statement contained in this paragraph is likewise inac- 
curate. It is evidently unnecessar}^ to call the attention of the Senate 
to the fact that the Attorney- General has no power to remove a 
United States attorney from office. The records of this Department, 
however, show that on December 18, 1905, the Attorney-General sent 
the above-mentioned W. B. Johnson, United States attorney as afore- 
said, the following telegram : 

The President has to-day removed you from office of the United States 
attorney for southern district of Indian Territory, to take effect immediately. 

The fifth paragraph of the said preamble is as follows: 

And whereas it is alleged that the said Attorney-General of the United States 
did, on or about the fifteenth day of January, nineteen hundred and five, by 
telegraphic communication, reinstate the said W. B. Johnson in the office of 
United States attorney for the southern district of the Indian Territory. 

The alleged statement therein contained is likewise inaccurate. On 
December 18, 1905, the Attorney-General, by direction of the Presi- 
dent, sent a second telegram to the said W. B. Johnson in the words 
following : 

My telegram of to-day notifying you of removal from office of United States 
attorney is hereby canceled. 

The records of this Department do not disclose the reasons of the 
President for causing either the first or the second of the above- 
mentioned telegrams to be sent. 

The sixth paragraph of the said preamble is as follows: 

And whereas it is alleged that the said W. B. Johnson refused and continued 
to refuse to dismiss the said indictment against the said persons during his term 
of office. 

The alleged statement contained in this paragraph is inaccurate to 
this extent that, inasmuch as the above-mentioned W. B. Johnston, 
United States attorney, was never instructed to dismiss the indictment 
in question, except in a contingency which aj^parently did not arise, 
he did not and, indeed, could not "' refuse to dismiss the said indict- 
ment ; " but it is true that the said indictment was not dismissed 
during the remainder of his term of office, which ended on February 
1, 1906, nor, I may add, was the said indictment dismissed until 
November 13, 1907, some twenty-one months after Mr. Johnson's 
successor had assumed office. 

The seventh paragraph of the said preamble is as follows: 

And whereas it is alleged that on or about the thirteenth day of November, 
nineteen hundred and seven, the Attorney-General of the United States did 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. i 

send a telegram to the United States attorney for tlie sontliern district of the 
Indian Territory, one George K. Walker, directing him to "be snre " and dis- 
miss the said indictment against the said persons "before the Territorial courts 
pass out of existence and the creation of the new State." 

The alleged statement therein contained is substantially correct, 
although slightly inaccurate in language. On November 13, 1907, 
I addressed the following telegram to George R. Walker, esq., then 
United States attorney for the southern district of the Indian Terri- 
tory : 

Have decided to authorize dismissal of Indictments against Mansfield, 
McMuri'ay, and Coi'nish. Take appropriate action at earliest opportunity, and 
be certain that indictments are dismissed before statehood goes into effect. 

The eighth paragraph of the said preamble is as follows : 

And whereas it is alleged that on or about the fourteenth day of November, 
nineteen hundred and seven, the assistant United States attorney for the south- 
ern district of the Indian Territory (the United States attorney being absent 
at the time), one James E. Humphrey, did cause an order to be entered upon the 
records of the United States court for the southern district of the Indian Terri- 
tory, sitting at Ardmore, dismissing the said indictment by the direction of the 
Attorney-General of the United States. 

The alleged statement contained in the last-mentioned paragraph is 
substantially correct. 

The first paragraph of the resolution itself is in the words follow- 
ing: 

Therefore, be it 

Resolved, That the Attorney-General of the United States be, and he is hereby, 
directed to transmit to the Senate a true and correct copy of the report of Spe- 
cial Agent J. S. ;Mosby, uiion which report the said indictment was returned; 
the minutes of the grand jury and the documentary evidence presented to said 
grand jury; a true and ecn-rect copy of the indictment; all correspondence of 
every kind and descrii^tion that has passed between the Department and the 
United States district attorney or attorneys and his or their assistant attorney 
or attorneys for the southern district of the Indian Territory ; all correspondence 
of evei-y kind and description between any officer, agent, or em[)loyee of the 
United States Government and any other person or persons whomsoever, per- 
taining or api>ertaining to said indictment. 

I have the honor to say that there is no report of Special Agent J. S. 
Mosby relating to the indictment on file in this Department, and no 
such report was ever received. The said indictment was not returned 
upon such report, nor upon any report of any special agent of this 
Department, nor upon any report of any kind. It is again evidently 
unnecessary to call the attention of the Senate to the fact that indict- 
ments must necessarily be returned upon the testimony of witnesses 
produced before the gi-and jury which returns it. This Department 
has not in its possession the minutes or the documentary evidence 
presented to the said grand jury, and can not, therefore, furnish or 
transmit the same to the Senate. This Department has, however, a 
copy of the indictment found, and transmits herewith what it believes 
to be a true and correct copy of this document, marked " Exhibit 1." 

There is included in this report, or inclosed therewith, all corre- 
spondence between this Department and the successive United States 
attorneys for the southern district of the Indian Territory which is 
material or appropriate to the subject-matter of the said resolution. 
Such further correspondence on this subject as there is on the files of 
this Department relates mainly to the acknowledgment of communi- 
cations or other matters of routine. This report contains the sub- 



8 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

stance of all correspondence in the possession of this Department 
between public officers belonging to the Department and other per- 
sons which is material to the subject-matter of the said resolution 
and ajDpropriate for transmission in accordance therewith. 

The final paragraph of the said resolution is in the words following: 

That the Attoniey-Genernl be, and he is hereby, directed to inform the Senate 
why said indictment was dismissed, whether n))on insnfiiciency of law or fact, 
and particularly whether the facts aliened were in the form of documentary evi- 
dence, and the guilt of the defendants thereby established beyond question : and 
whether it is customary for the Attorney-General to interfere in the prosecution 
of persons against whom an indictment or indictments have been returned in the 
State or Federal courts of the country, and if so, by what authority of law ; 
and whether other indictments of a similar nature liave been dismissed by direc- 
tion of the Attorney-General within the past fi\'e years, and if so, what indict- 
ment or indictments and the cause therefor. 

With regard to this paragraph I have the honor to state that the 
reason for the dismissal of the said indictment appears from the 
present report and from the communications herewith inclosed from 
United States Attorney George K. Walker, Special Assistant W. S. 
Gregg, and Charles Xagel, esq., special assistant to the Attorney-Gen- 
eral, all three of whom successively recommended the dismissal of the 
said indictment ; that by " the facts alleged " I understand the reso- 
lution to mean the facts alleged in the said indictment, and the in- 
formation of the Department on tliis subject is contained in the three 
reports lastly above mentioned and inclosed herewith, and in certain 
verbal reports made by Assistant Attorney-General Charles W. Rus- 
sell, who made a careful investigation of the matter, as set forth in 
this report; and that, in the opinion of Messrs. Walker, Gregg, and 
Nagel, of Assistant Attorney-General Russell, and of the present At- 
torney-General, " the guilt of the defendants " was not '' thereby," 
that is to say, by the evidence submitted to the grand jury, " estab- 
lished beyond question." On the contrarj^, the officers in question 
agreed in the belief that the indictment ought not to have been found, 
and that there was no hope of securing a conviction before an impar- 
tial jury. 

I further respectfully report that it is customary for the Attorney- 
General to interfere in the prosecution of persons against whom an 
indictment or indictments have been returned in Federal courts of 
the countr3^ and that it is not customary nor would it be possible for 
the Attorney-General, as such, to interfere in the prosecution of 
persons against whom an indictment or indictments have been re- 
turned in State courts of this country. The authority of law for such 
intervention by the Attornev-Geheral is contained in the acts ap- 
proved August 2, 1861 (12 Stat, 285). and June 22, 1870 (16 Stat., 
164), and codified as United States Revised Statutes, section 362; and 
many indictments charging offenses against the United States have 
been dismissed under the authority of this Department within the 
past five years, but I deem it inappropriate to furnish a list of such 
indictments and the reasons for the dismissal of each, respectively, 
inasmuch as such information would appear to have no bearing upon 
the subject-matter of this resolution, and to furnish it would involve 
a very material loss of time and labor and considerable expense to 
the public. 

I deem it appropriate to add that it appears from the records of 
this Department that on July 31, 1905, Mr. Charles W. Russell, now 



INDICTMENTS POUND AGAINST D. B.. JOHNSTON ET AL. 9 

Assistant Attorney-General, as above stated, sent to Hon. William 
H. Moody, then Attorney-General, a letter relating to this case, of 
which a copy is herewith forwarded, marked '' Exhibit J ; " that on 
September 20. 1905, ]\Ir. Eussell submitted to the Attorney-General 
a report, of which a copy is herewith forwarded, marked " Exhibit 
K ; " that on October 14, 1905, this report was, by order of the Attor- 
ney-General, forwarded to Mr. W. B. Johnson, then United States 
attorney for the southern district of the Indian Territory, with in- 
structions to make such comment thereon as he might deem appro- 
priate; and that on October 20, 1905, Mr. Johnson sent' a letter to the 
Attorney-General, a copy of which is herewith forwarded, marked 
" Exhibit L." Subsequently the said United States attorney was 
ordered to Washington for a personal conference with the Attorney- 
General, and, after said conference and his return to the Indian Ter- 
ritory, the telegram of December 6, 1905, was sent to him by this 
Department. I did not refer to these various documents in the nar- 
rative portion of this report, because they appeared to have no direct 
connection with the dismissal of the indictment in question on Novem- 
ber 13, 1907 ; but, as they relate to the subject-matter of the resolution 
and are among the documents requested by its terms, it seems appro- 
priate that copies of them should accompany this report. 

It seems proper likewise that I should say that, while, as is herein- 
before set forth, the records of the Department do not disclose the 
reasons for the President's removal of United States Attorney 
Johnson on December 18, 1905, and his revocation of this order on 
the same dnj. I have official information that the first-mentioned 
telegram was sent under an impression, on the President's part, sub- 
tantially to the same effect as the alleged statement contained in the 
third paragraph of the preamble to the resolution above mentioned, 
that is to say. that the said United States attorney had disobeyed 
the instructions of this Department, and his removal was by reason 
of such supposed act of disobedience, and that this erroneous impres- 
sion having been removed through a personal explanation by the 
Attorney- General, the President later on the same day revoked the 
order in question. 

Very respectfully submitted. 

Charles J. Bonaparte, 

A ttoimey- General. 

The President of the Senate. 



Exhibit A. 

[Telegram.] 

Ardmore, Ind. T., December 13^ 1905. 
"Further reporting on Mansfield, McMurray, Cornish, et al. matter, 
verified statement cashier State National Bank, Denison, Tex., shows 
January 1, 1899, D. H. Johnston personally had on deposit less than 
$500. On May 17 account overdrawn ; same June 3 and September 6. 
On May 20, same year, Johnston as governor had on deposit $30,000 
to pay expenses per appropriation act ; same date checked out $2,565 ; 
same date his personal account credited with that amount. Same 



10 INDICTMENTS FOUND AGAINST D. H. JOHNSTON BT AL. 

thing occurred June 12 — $1,200. On December 6 account of gov- 
ernor had $34 on hand. During 1900 account governor had deposited 
about $7,000; all checked out same year. Nineteen hundred and 
one same account had deposited $2,000 ; checked out. In 1899 John- 
ston's individual account showed deposits $18,500; 1900, $42,000; 
1901, $21,000. Salary as governor only $1,500 per annum; other in- 
come reported nominal. Claimed by attorneys during these years 
Johnston personally advanced money to defray expenses and took 
these warrants due them in lieu thereof. Think further investiga- 
tion will show large deposits of Johnston were funds belonging to 
Chickasaw Nation. Will mail statement this date. 

Johnson, United States Attorney. 
The Attorney-General, 

Washington^ D. C. 



Exhibit B. 

Office of United States Attorney. 
Southern District of Indian Territory, 

Ardmore, Ind. 7"., December 13, 1905. 

Sir: I l^ere^^•ith inclose you verified statements of the account of 
D. H. Johnston and also of D. H. Johnston, governor of the Chicka- 
saw Nation, with the State National Bank, of Denison, Tex., verified 
by the cashier of that bank. These are the statements I have been 
having so much trouble in procuring. 

I also inclose an act of the Chickasaw legislature appropriating 
$30,000, which sum was turned over to Governor Johnston on May 
20, 1899. The act itself explains the purpose for w^hich the appro- 
priation was made. It will be observed that on the same date $2,- 
565,75. was drawn from this fund, and also on the same date similar 
sums were credited to D. H. Johnston's account. On June 12, $1,200 
of this amount was checked out, and on the same date the same 
amount was deposited to the credit of D. H. Johnston. 

Beginning with January 1, 1899, D. H. Johnston deposited during 
that year $18,509.87. During the year 1900 he deposited $42,001.20. 
During the year 1901 he deposited $21,458.75. 

It is a well-known fact that Governor Johnston did not have an 
income in any one of the three years mentioned equal to $5,000 per 
annum. 

I feel confident that an examination of the Chickasaw treasurer's 
books and of the revenue accounts of said nation will show that the 
moneys thus deposited belonged to the Chickasaw Nation, and was 
not the individual money of Johnston. 

It has been impossible for me in the time allotted and the oppor- 
tunity afforded to make an investigation to learn definitely from 
what source he received this money. It will be remembered that tie 
attorneys, Mansfield, McMurray & Cornish, admitted that Johnston 
received three Chickasaw warrants for $2,700 each, which should and 
did belong to them. The explanation offered by them was that the 
warrants were turned over to Johnston because he had personally 
advanced money to them to defray expenses incurred on behalf of the 
Chickasaws for an amount greater than the sum of the three war- 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. ] 1 

rants. The first item submitted by them was a check of $77.15, paid 
them by Johnston September 7, 1899. At that time the $30,000 
had not been entirely used, and there was no reason why he should 
have paid these expenses out of his individual funds. The same may 
be said about other checks paid later. 

I feel that it is unnecessary for me to go into details, because you 
will have an opportunity to examine the statements furnished, and 
nothing I can say will probably assist in arriving at a proj^er conclu- 
sion about this matter. I can not refrain from saying, however, 
knowing the financial condition of the parties and the surrounding 
circumstances, that I believe a more complete investigation would 
reveal the fact that the moneys used by the attorneys to cover alleged 
expenses did not belong to Johnston, but to the people of the Chick- 
asaw Nation, and that when he received the three $2,700 warrants, 
which has been admitted, he was appropriating money to his own 
use that he had no right to. Nor have I changed my original opin- 
ion as to the guilt oi these defendants. The book shown by them 
appeared to account for the three $2,700 warrants, but the investi- 
gation made convinces me that Johnston did not advance this money 
out of his private means. The other accounts were shown b}^ the 
book to be regular, but as those statements rendered were so poorly 
itemized it is impossible to sa}' that the expense was or was not 
incurred. 

So far as I am concerned, this closes my investigation of the case, 
and it is for you now to determine what shall be done. 
Very respectfully. 



The Attorney-Gener-\l. 

Washington, D. 0. 



Wm. B. Johnson, 

United States Attorney. 



Exhibit C. 

Office of United States Attorney. 
Southern District or Indian Territory, 

Ardmore, Ind. T., March 29, 1907. 

Sir: In the matter of the indictment for conspiracy pending in 
the United States court in the southern district of the Indian Terri- 
torv against D. H. Johnston, P. S. Mosley, George Mansfield. J. F. 
McMurray, and Melville Cornish. 

I have to report that since the date of my appointment, to wit, 
February 1, 1906, I have given earnest consideration to the indict- 
ment, the stenographic report of the evidence presented to the grand 
jury, the personnel of the grand jury finding the indictment, the 
personnel of the witnesses testifying before the grand jury, the mo- 
tive, if any, of the witnesses in so testifying before the grand jury, 
the relations of the prosecuting witnesses to these defendants, the rela- 
tions between the various members of the grand juiy and these de- 
fendants, and the relations between these defendants and the public 
at larse in the southern district of the Indian Territorv. 



12 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

For my guidance as to the law involved in this matter I prepared, 
with such assistance as I could procure in my office, a brief on the 
general law of conspiracy, a copy of which is herewith inclosed. 

As to the facts and allof the facts to be relied upon and used in the 
trial of the case I was informed by the Secretary of the Interior that 
further information would be jDresented to me, and that Mr. William 
J. Burns, of the Secret Service, would be put in charge of such work 
as special assistant to me in the business of collecting all the evi- 
dence in existence touching these facts. I early consulted the local 
attorneys of these defendants in reference to their disposition to 
place at my disposal for personal examination the books, checks, ac- 
counts, contracts, etc., that were exhibited to the Department of Jus- 
tice at Washington prior to my appointment, and was assured that 
all such books and papers would be brought to Ardmore for my ex- 
amination upon request. 

I then, from time to time, as I could spare it from my general du- 
ties in the management of a large criminal business which had to 
do with crowded dockets in eight court towns and with a large vol- 
ume of new criminal business being continually ground out by eight 
grand juries, commenced to acquire by observation, absorption, and 
the processes of taking on information known to lawyers as under- 
standing of the environment and the validity of this indictment. 

I have written Mr. Burns several letters requesting him to make 
his investigations, as this case was on the Ardmore docket and could 
not be continued indefinitely from term to term. 

During the past week I found that I had the time at my disposal 
for the personal consideration of the facts in this case and made a 
request of the local counsel for these defendants to furnish me for 
personal inspection all books, papers, checks, contracts, etc., that 
would throw any light upon the crime charged in the indictment. 
I examined the cash book of Mai^field, McMurray & Cornish, the 
original checks, numerous letters, <x)ntracts, and papers of eA^ery de- 
scription. I then proceeded to the city of Denison, Tex., and with 
the assistance of the president and cashier of the State National 
Bank, of Denison, Tex., where defendant Johnston kept a bank ac- 
count and upon which bank checks were drawn that cut some figure 
in the facts of the case, I made a careful examination of the books 
of the bank in relation to all transactions in question, examining the 
credit and debit accounts carefully, and considering these items in 
reference to their business relations and the information I had ob- 
tained from the cash book of Mansfield, McMurray & Cornish, and 
the checks exhibited by these defendants with the indorsements on 
the checks, and the books and accounts of Mansfield, McMurray & 
Cornish. 

Upon the conclusion of these examinations of phj^sical facts I 
arrived at the conclusion that it was my duty to report to you that it 
is unnecessary to make further delay and the ends of justice will be 
adequately met by the disposition of the indictment without hope of 
obtaining additional facts throiigli the aid of Mr. Burns or secret 
service officers. 

My conclusion is that the relations existing between these defend- 
ants and the public at large in the southern district of the Indian 
Territory deprive these defendants and each of them of a proper 
forum or tribimal in the courts of the southern district of the Indian 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 13 

Territory. The adequacy of the United States courts in the southern 
district of the Indian Territory to proj^erly try and dispose of criminal 
litigation has been questioned in the pasti You remember about four- 
teen or fifteen }ears past the criminal cases of the southern district of 
the Indian Territory were tried at Fort Smith, Ark., and later, about 
twelve years since, were tried at Paris, Tex., shortly after which the 
jurisdiction to try criminal cases was passed over to the United States 
courts established by Congress in the southern district of the Indian 
Territory. These United States courts are well organized, with com- 
petent judges and officers, and have generally obtained as good results 
as could be expected from courts where the judges were not permitted 
to charge the jury upon the facts. The juries, grand and petit, do 
not seem to come quite up to the mark. They mingle southern preju- 
dice, Indian tradition, and Masonry with a somewhat frontier-like 
recognition of the unwritten law, which is a broader proposition than 
is known to the eastern courts, and they need special guidance as to 
the facts submitted to them from the court. I am satisfied that when 
the judges in the southern district of the Indian Territory charge the 
juries orally upon the facts that the juries in the southern district 
will respond patriotically and fully perform their responsibilities. 

My further conclusion is that the United States courts for the 
southern district of the Indian Territory not only do not furnish a 
forum for the determination of this criminal charge against these 
defendants, but that the charge itself is invalid. It was not made in 
good faith to the grand jury by the prosecuting witnesses. In fact, 
there was not sufficient evidence presented to the grand jury to war- 
rant them in finding the indictment. The finding of the grand jury 
was too long a shot upon the record before the grand jury. The find- 
of the grand jury was not a good guess upon the slender information 
before the grand jury. There Avas not enough evidence before the 
grand jury to reasonably warrant the grand jury in finding that there 
was something before them that should be considered before a petit 
jury. The evidence of several of the witnesses who appeared before 
the grand jury was preserved by the stenographer, but it is to be 
observed that the evidence of defendant McMurray was not preserved 
for the use of the United States attorney who should try the case. 

It appears from the statement of defendant McMurray and a 
letter of Mr. W. B. Johnston's to the Attorney- General that a state- 
ment was made to this grand jury that Mr, McMurray at the con- 
clusion of his testimony before the grand jury in Ardmore would 
produce the books, paj)ers, checks, etc., to substantiate his testimony, 
and permission was granted by the grand jury to Mr. McMurray to 
do so. Mr. McMurray did immediately send for such papers, books, 
etc., and had the same at the door of the grand jury room by the 
first train, but it appears that the grand jury had returned this 
indictment before Mr. McMurray could . appear before them with 
the books and papers to enlighten the grancl jur}'^ in reference to the 
charge of crime against these defendants. I am satisfied that if 
the grand jury had had the patience to examine the books, papers, 
checks, etc., in connection with Mr. McMurray's testimony they would 
not have brought in the indictment. I am very clear that no good 
purpose was served by the grand jury not fully complying, intention- 
ally or unintentionally, with the request of defendant McMurray 



14 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

that they examine and deliberately consider the books and papers 
used in the transactions before them. 

The grand jury that found this indictment was organized May 22, 
1905. On the 24th day of May, 1905, Farley Worsham, of Ardmore, 
was excused and Walter Colbert, of Ardmore, was sworn in. Prior 
to the presentation of the subject-matter of this indictment and on 
the 19th day of June, 1905, this grand jury was reorganized, and 
only seven of the original grand jurors were retained in the reor- 
ganization of the grand jury. The remaining nine members of the 
reorganized grand jury were citizens of Ardmore and two of the 
original members of the grand jury retained on the reorganized 
grand jury also lived in Ardmore, so that there were eleven resi- 
dents of the city of Ardmore on the reorganized grand jury. 

There was a public sentiment in the city of Ardmore against these 
defendants, to which I will refer later. I am informed that this 
grand jury was reorganized on June 19, 1905, so as to procure a 
grand jury that would fairly consider the charges to be preferred 
to it against ex-Marshal Colbert, and it was the investigation of 
the charges against ex-Marshal Colbert that was to be the chief 
business of the reorganized grand jury, and that the preferment of 
charges against these defendants named in this indictment for con- 
spiracy was not anticipated by the grand jury and the officers of 
the Government, but was an outcrop of the hearing of the charges 
against ex-Marshal Colbert. The record before the grand jury has 
all the earmarks of such a conclusion, and, in fact, shows well enough 
an inadequacy of evidence touching the crime charged to these de- 
fendants. The haste and refusal of the reorganized grand jury to 
consider all the evidence and, in fact, as they must have known, the 
controlling evidence in reference to the wrongdoing of these defend- 
ants, gives to the transaction a color that puts me on my guard and 
causes me to halt. 

In 1896 Congress conferred upon the Dawes Commission authority 
to pass upon and determine applications for citizenship in the Five 
Civilized Tribes. 

The Chickasaw Nation employed to represent it in this controversy 
W. B. Johnson, who a short time thereafter was appointed United 
States attorney for the southern district of the Indian Territory, 
agreeing to pay him therefor a salary of $8,000 per annum. During 
the two years that Mr. Johnson represented the Chickasaw Nation 
there were admitted to citizenship in the Choctaw and Chickasaw 
nations, by judgments of the United States courts for the southern 
and central districts of the Indian Territory, on appeal from the 
Dawes Commission, about 4,000 persons, being about 95 per cent of 
all of those making application. 

During the larger part of the time that Mr. Johnson represented 
the Chickasaw Nation his time was principally occupied in the dis- 
charge of his duties as United States attorney for the southern dis- 
trict of the Indian Territory, there being upon the dockets of the 
United States courts of this district a very large volume of crimi- 
nal business. He employed to assist him Mr, Volney Johnson, a 
young attorney recently admitted to practice. This emjployment was 
without authority of the nation, but notwithstanding this fact, on 
request of Mr. W. B. Johnson, Mr. Volney Johnson was paid out of 
the fimds of the tribes for his services $1,300. In addition to this 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 15 

the Chickasaw Nation paid large sums of money to Gen. H. E. Payne 
and the Hon. Holmes Conrad, resident attorneys of Washington, 
D. C, who were employed at the instance of Mr. Johnson to repre- 
sent the Chickasaw Nation in the citizenship cases appealed from the 
judgments of the United States court for the southern district of the 
Indian Territory to the Supreme Court of the United States. 

The result of all this was the affirmance of the judgments of the 
United States courts and the enrollment as members of the Choc- 
taw and Chickasaw tribes of the applicants, numbering about 4,000, 
admitted by these judgments. 

The nations were dissatisfied with tlie results of the citizenship 
litigation as conducted by Mr. Johnson, which had terminated in 
the enrollment of this large number of applicants whom they re- 
garded as fraudulent claimants. Accordingly the nations entered 
into a contract Avith ]Messrs. Mansfield, McMurray & Cornish to 
represent them in citizenship controversies other than those in which 
the judgments of the United States courts had become final, agreeing 
to pay them for such services an annual salary of $5,000 and expenses 
not exceeding $2,700 per annum. 

It appears that in the discharge of their duties as such attorneys 
they became convinced that great wrong and injustice had been done 
these nations by the admission of these applicants by the United 
States courts, and advised the nations of this wrong, and that there 
ought to be, and that they believed they could find, a remedy. 

Thereupon both nations employed the firm of Mansfield, McMur- 
ray & Cornish upon a contingent fee to represent them in having 
the judgments of the United States courts admitting these parties to 
citizenship vacated, if possible. Seeking a remedy for the wrongs 
believed to have been perpetrated by these judgments, the firm of 
Mansfield, McMurray & Cornish originated the idea that afterwards 
was expressed in sections 31 and 32 of what is loiown as the '• Supple- 
mental agreement," approved by the President July 1, 1902, It also 
appears that through the efforts of Mansfield, McMurray & Cornish 
the treaty containing these provisions was entered into between the 
tribes and the United States and ratified by act of Congress. This 
agreement contained the provisions creating the citizenship court 
and conferring upon it jurisdiction to review the judgments of the 
United States courts, and to decide the questions involved according 
to the real right of the matter in controversy. It also conferred upon 
the citizenship court the right to fix the fee of Mansfield, McMurray 
& Cornish for services rendered in the citizenship cases pending in 
that court. It also appears that from the time of the employment 
of the firm of Mansfield, McMurray & Cornish they had the practical 
control of the administration of the entire affairs of the two tribes. 
They not only had control of the legal affairs of the two tribes, but 
of the financial and business affairs. 

After the employment of the firm of Mansfield, McMurray & 
Cornish no other attorney was ever retained or paid by either of the 
nations for services on their behalf, either at home or in Washington. 

For a number of years previous to the employment of Mansfield, 
McMurray & Cornish the tribes had been unable to collect any of the 
tribal taxes assessed against the merchants, cattlemen, farmers, etc., 
in the Choctaw and Chickasaw nations. After the employment of 
Mansfield, McMurray & Cornish as attorneys for the nations, they 



10 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

took up the enforcement of this tribal tax, Avith the result that much 
litigation ensued, and much ill-feeling was engendered against them 
on the i)art of those persons avIio resisted the payment of the taxes. 
The final results of the efforts of Mansfield, McMurray & Cornish were 
the enforcement of the payment of all tribal taxes in favor of both 
nations and the payment into the treasuries of the two nations of sev- 
eral hundred thousand dollars from this source, the reviewing of all 
the judgments of the United States courts in citizenship matters, and 
the renclition of judgments eliminating from the tribal rolls the claims 
of between 3,000 and 4,000 persons, thereby saving to the members of 
the tribes about $30,000,000. 

The amounts involved in all these transactions are enormous, the 
scope of country necessarilj' covered very extensive (being about 150 
to 200 miles), the expenditures were necessarily large, and the results 
achieved all that could have been expected. The matter is well 
summed up by Judge Anderson, of the supreme court of the District 
of Columbia, in the case of McLish v. Shaw et al. : 

Something has heen said here about the defense of these attorneys — that they 
were loolving out for themselves, and by the character of their defense against 
the claimants of these fraudulent claims selfishly seeking to broaden the basis 
of their own compensation. In the judgment of the court it is a commendable 
thing in a lawyer to always and under all circumstances do the best he can for 
his client, and on the other hand, it is the proper and just thing in the client to 
fully recognize the services of his attorney and duly compensate him therefor. 
When these men were striking down the claims of these fraudulent claimants one 
after another until 4,000 had been felled before the attack made upon them, they 
added that much to the aggregate that would remain for those whom the court 
found were entitled to it. While it had the effect of broadening the basis of 
their fees, it also had the effect of correspondingly increasing the per capita 
distribution of the fund that stayed among their clients. * * * 

Here were 4,000 men clamoring to get their hands into the Treasury of the 
United States, and these defendant attorneys representing their claims said, 
" They are not entitled to a dollar. These claims are frauds. They are not 
citizens of either one of these nations." They proceeded, as it was their duty 
to do. to investigate before that court, and unearth fraud and disclose it to the 
court wherever they could find it. The services rendered were valuable, as may 
well be appreciated when it is considered that thev saved $1.5,000,000 or 
$20,000,000 to their clients. 

So far as the reasonableness of this compensation is concerned, I agree with 
the Assistant Attorney-General, that tliis is not a matter before this court. If 
it were, and I were called upon to pass upon that question, either as a court or 
as a juror sitting to try that question, I do not hesitate to say that in the light 
•of the facts now before the court I would have no difhculty in concluding that 
the fees allowed were in every way reasonable. 

A careful consideration of this case disclosed the fact that the par- 
ticular expenditures that are the basis of this indictment were in- 
volved in that controversy, and that the opinion and judgment of 
Judge Anderson in that case was to some extent a judicial determina- 
tion of these matters in favor of the contention of Mansfield, McMur- 
ray & Cornish. 

The indictment in this case is supposed to be based upon the pay- 
ment of certain moneys as expenses to the firm of Mansfield, McMur- 
ray & Cornish. I find nowhere in this record any evidence of any 
character to justify the finding of the indictment in this case, or to 
justify the continuance of this case upon the docket of the court. 

It is very difficult, indeed, in view of these facts, to see upon what 
theory the indictment in this case was returned. I am informed, how- 
ever, as I have before stated, that this explanation was not made 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 1 7 

before the grand jiirv. That when Mr. McMurray was brought before 
the grand jury he w^as asked if he had books, papers, etc., that would 
explain his dealings with the nations and the pa}- nient of his expenses, 
and to confirm his statements with reference thereto, and that he ad- 
vised Mr. Johnson in the presence of the grand jury that he had, and 
that he would produce them as quickly as he could telephone to South 
McAlester and have them brought to Ardmore. That thereupon the 
grand jury and Mr. Johnson agreed to wait until these books and 
J3apers could be secured from South McAlester, and that they would 
then take up the case again on the follow^ing Monday. That notwith- 
standing this agreement an indictment was returned the same even- 
ing, after IMr. McMurray had arranged to have the books here on the 
following Monday morning. The books were brought to xVrdmore by 
Mr. Cornish, as per the agreement, on that very day. arriving at mid- 
night on the first train after the agreement was made. 

In view of this condition of affairs, the reason for the returning of 
this indictment and the motive prompting those active in securing 
and returning the same, become a matter of grave concern. In this 
connection it may be well to consider that the employment of Messrs. 
Mansfield, McMurray & Cornish deprived Mr. W. B. Johnson, who 
continued to hold the office of United States attorney, of an income 
of $8,000 per annum. Not only this, but a comparison of the results 
obtained by Mr. Johnson while acting in the capacity of attorney for 
the Chickasaw Nation with those obtained by his successors, Messrs. 
Mansfield, McMurray & Cornish, was such as to probably embarrass 
those among the members of the Chickasaw tribe who were instru- 
mental in securing Mr. Johnson's employment. It may also be well 
to consider that Ardmore was the center of the tribal tax agitation: 
that it was the headquarters of the organization whose purpose it was 
to resist the payment of tribal taxes. Many, if not all, of the mer- 
chants of Ardmore had contributed to pay the expenses of instituting 
and maintaining injunction suits to restrain the collection of these 
taxes. A number of the merchants of Ardmore had had their stores 
closed because of their refusal to pay these taxes. The practically 
unanimous opinion among the business men was that the enforce- 
ment of these taxes was an outrage to be resisted by any lawful 
means; that the collection of these taxes was little less than highway 
robbery. With practically all of the merchants of Ardmore thor- 
oughly impregnated with this idea and with the majority of the 
grand jury selected from among these merchants, it is less difficult to 
arrive at a conclusion as to the reason why the grand jury was prompt 
in returning this indictment. 

There is puerility in the thought that Mansfield, McMurray & 
Cornish would steal expense money when they and the Indians were 
all of the time short of expense money and when they had a valid 
and legal contract entitling- them to 10 per cent of the results to be 
ultimately achieved in their undertaking. The grand jury were in 
grave error in assuming that Mansfield, McMurray & Cornish, at any 
stage of this gigantic undertaking, would sit down and play " craps " 
with any of this expense money and thereby embarrass and delay, 
possibly destroy, the success of their undertaking, which meant mil- 
lions of dollars for the Indian tribes and 10 per cent thereof as f> 
reward for Mansfield, McMurray & Cornish. 
S. Doc. 39S, 60-1 2 



18 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

If the owner of a valuable fee in land sliould employ an architect 
or a contractor to put a structure thereon, and the owner had only a 
small amount of cash to cover the necessary expenses and accord- 
ingly should engage to give to the architect or contractor a small 
salary for services and a contingent interest in the proceeds of the 
sale of the land and the building erected thereon, it is not fair to 
assume that the architect or contractor would be content with the 
misappropriation or embezzlenu-nt of the paltry expense money in 
the hands of a substantially bankrupt owner. It is to be assumed, 
however, that the owmer and the architect would husband all their 
time, get together all of their limited resources, and devote all their 
energies and all their little moneys so that the project might be 
achieved and the reward secured for the enrichment of a practically 
bankrupt owner and a practicall}' bankrupt architect or contractor. 
It is not fair to assume that Governor Johnston and Governor Mosley, 
of the Indian tribes, and Mansfield, McMurray & Cornish were devot- 
ing themselves to the dissipation of such trifling sums of money when 
by the proper use and application of such money and large sums of 
money borrowed by Mansfield, McMurray & Cornish on their own 
personal credit, a great prize could be won for the Indian tribes and 
10 per cent of which then became the property of Mansfield, Mc- 
Murray & Cornish. 

Like the Johnson grass in Texas, of which a Nestor farmer told 
me on the train on my return from the Denison Bank, where I found 
a mare's-nest. The Johnston grass, with the muscular roots that the 
farmer described, threatens to spread over the State of Texas and 
conquer all opposing vegetation there. So I then thought and now 
state the fact to be that, like the Johnson grass in Texas, the fore- 
going conclusion spreads its way over this record and strangles every 
fact opposing it. 

This case can not be won. It ought not to be won. There is but 
one victory for the Government in the premises. That is in the 
immediate dismissal of the indictment. 

I do not wisli to be understood in the foregoing as tendering any 
criticism of Mr. W. B. Johnson, my predecessor in office. 

I therefore respectfully inform you that I am prepared to take the 
official and professional responsibility of dismissing the indictment, 
unless there is some fact knoAvn to the Department at AVashington, 
or some conclusion arrived at by the Department that has not 
occurred to me. 

Very respectfully, Georoe R. Walker, 

United States Attoniey. 

The Attorney-General, 

W ashington^ D. C. 



Exhibit D. 

Department of Justice, 

Washington, May 1, 1907. 
Sir : In obedience to the instructions contained in your confidential 
letter of April 0, 1907, directing me to investigate the facts upon 
which the indictment in the case of The United States v. D. H. John- 
ston, P. S. Mosely, George Mansfield. J. F. McMurray, and Melvin 
Cornish, pending in the southern district of the Indian Territory, 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 19 

charging a conspiracy to defraud the Chickasaw Nation out of cer- 
tain funds, is predicated, I have the honor to submit the following 
report of the result of my investigation : 

I proceeded to Ardmore, in the southern district of the Indian 
Territory, and requested the United States attorney, Mr. George R. 
Walker, to place at my disposal for examination all of the records 
of that case, which he did. I first took up the indictment and went 
through carefully all of the testimony, which appears of record, pre- 
sented to the grand jury at the time this indictment was returned. It 
appears from the records that only a portion of the testimony before 
the grand jury was reported. It appears that Mr. McMurray, one 
of the defendants, appeared before the grand jury and testified, but 
his testimony does not appear to have been reported. 

It further appears that when the investigation was instituted before 
the grand jury it was the intention of Mr. W. B. Johnson, who was 
at that time United States attorney, to inquire into the facts concern- 
ing the failure of the bank of the Chickasaw Nation, located at Tisho- 
mingo, Ind. T., which had become insolvent. However, during the 
progress of the investigation before the grand jury, evidence was pro- 
duced which tended to show that Mansfield, McMurray & Cornish, 
who were at that time attorneys for the Chickasaw Nation, and D. H. 
Johnston, governor of the Chickasaw Nation, and P. S. Mosely, for- 
merly governor of said nation, had conspired together to defraud said 
nation out of certain funds. 

The indictment against Mansfield, McMurray & Cornish et al. is 
predicated upon the testimony of Kichard McLish, fonnerly auditor 
of public accounts of the Chickasaw Nation; that of William T. 
Ward, formerly treasurer of the Chickasaw Nation, and that of D. TI. 
Johnston, governor of the Chickasaw Nation. If there was any addi- 
tional evidence before the grand jury against these defendants, it 
does not appear of record. 

The principal allegations in the proceedings against Mansfield, 
McMurray & Cornish are as follows: 

1. That Mansfield, McMurray & Cornish conspired with D. H. 
Johnston, the governor of the Chicksaw Nation, and P. S. Mosely, 
formerly governor of the Chickasaw Nation, to have passed by the 
Chickasaw legislature acts authorizing the expenditure of money, 
which acts were not submitted to the President for his approval. 

2. That Mansfield, McMurray & Cornish received payments for 
salary and expenses under these acts. 

3. That certain warrants for salaries and expenses that were issued 
in favor of Mansfield, McMurray & Cornish were indorsed over to 
D. H. Johnston, the governor of the Chickasaw Nation, by the said 
Mansfield, McMurray & Cornish. 

4. That Mansfield, INIcMurray & Cornish presented accounts for 
fees and expenses to the Chickasaw Nation, which accounts were ap- 
proved by the governor of said nation, when they were not entitled 
to such salary and expenses. 

I. 

It is alleged that Mansfield, McMurray & Cornish conspired with 
D. H. Johnston, governor of the Chickasaw Nation, and P. S. Mose- 
ley, formerly governer of the Chickasaw Nation, to have passed by 
the Chickasaw legislature certain acts authorizing the expenditure 



20 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

of nioiiey. wliirh' act- were not subniitted to the President for his 
approvaL 

It does appear that acts authorizing the governor of the Chickasaw 
Nation to make expenditure of funds for the benefit of said nation 
\Yere passed by the Chickasaw legishiture and that certain of said 
acts were not submitted to or approved by the President. 

The first of these acts passed the house and senate of the Chickasaw 
legislature in September. 1899, and was approved by the governor of 
said nation on September '20, 1899. There is nothing in the records 
to show whether or not this act was submitted to the President for his 
approval. 

The act is as follows : 

AN ACT Approving the contract of Mansfield, McMurray and Cornish for legal services, 
and making appropriation therefor. 

Whereas on .July twentieth, eijihteeu and ninety-nine, Douglas H. .Johnston, 
.aovernor of the Chickasaw Nation, on the part of the Chickasaw Nation, en- 
tered into a contract with Mansfield. ^McMurray and Cornish, attorneys at law, 
to represent the Ciiickasaw Nation in all matters of citizenship now pending 
befoi-e the Dawes Commission, the Secretary of the Interior of the United 
States, and the I'nited States courts, to the final completion and approval of 
the rolls of the Chiekasaws; said contract to be subject to be annulled by the 
legislature of the Chickasaw Nation after two years from the date thereof; 

Whereas it is provided in said contract that the said Mansfield. McMurray 
and Cornish are to reeei\'e, as compensation for such legal services, the sum 
of live thousand dollars per annum, together with their actual and necessary ex- 
penses ini-uri'ed in the performance of such services, and such expenses to be 
rendered in duly verified accounts to the governor of the Chiclvasaw Nation, on 
the twentieth of each month, to be certified by him for payment, as provided by 
the terms of said contract; and 

Whereas in the trial of contested cases of those claiming Chickasaw citizen- 
ship before the Dawes Conunission and the Secretary of the Interior, and in 
certain proceedings now itending and to be instituted in the United States 
courts in connection with citizenship matters, it will be necessary to incur ex- 
penses in the way of witness fees, mileage, court costs, and so forth: Therefore, 

Be it enacted hij tin' Jcgislature of the Chickasaw Xation, 

Section ]. That the said contract entered into on July the twentieth, eighteen 
hundred and ninety-nine, between Douglas H. Johnston, governor of the Chick- 
asaw Nation, on the part of the Chickasaw Nation, and Mansfield, McMurray 
and Cornish, is hereby ratified and approved. 

Section 2. That an appropriation is hereby made therefor out of any funds 
belonging to the Chickasaw Nation not otherwise apjjropriated. and the auditor 
of public accounts of the Chickasaw Nation is directed to issue his warrants on 
the treasurer of the Chickasaw Nation for such salaries and expenses, includ- 
ing traveling expenses, clerical assistance, postage and stationery of attorneys, 
per diem and mileage of witnesses, court costs, and such other items of expense 
as may be incurred in the iierformance of such services, shall not exceed the 
sum of twenty-seven hundred dollars per annum. 

Section .3. Tliat this act shall take effect and be in force from and after its 
passage and approval by the President of the United States. 

Recommended by C. D. Carter. 

Passed the house this Sei>teniber 1!), l.sitO. 

Joe Newberry, 
Speaker of the House. 

Attest : 

J. W. Greenwood. 

Clerk of the House. 

Passed the senate thi.s September 20. 1899. 

Dave Seely, 

Attest: President of the Senate. 

J. W. Byrd. 

Secretary of the Senate. 

Approved September 20, 1899, 

D. H. Johnston, 
Oovernor Chickasaw Nation. 



INDICTMENTS FOUND AGAINST D. H, JOHNSTON ET AL. 21 

It will be observed that this act approved a contract entered into 
by Douglas H. Johnston, the governor of the Chickasaw Nation, with 
Mansfield, MclSInrra}^ & Cornish, attorneys at law, to represent said 
nation in all matters of citizenship pending before the Dawes Com- 
mission, Secretary of the Interior, and the United States courts, and 
for the filial completion and approval of the rolls of the Chickasaws. 
Under the terms of said contract Mansfield, McMurray & Cornish 
were to receive as compensation for legal services the sum of $5,000 
per annum, together with their actual and necessary expenses incurred 
in the performance of said services, with the further provision that 
the expenses incurred in this connection should not exceed the sum of 
$2,700 per annum. 

The second act, under which salary and expenses w^ere paid to 
Mansfield, McMurray & Cornish, passed the Chickasaw legislature on 
October 26, 1900, and was on the same day approved by D. H. John- 
ston, the governor of the Chickasaw Nation. There is nothing in the 
records to show that this act was submitted to the President for his 
approA^al. 

The act provides as follows: 

AN ACT To provide for regular and necessary expenses to protect the interest of tlie 
nation, and directing payment of the same out of the contingent fund of the governor. 

Whereas past experience has shown that regular and necessary expenses must 
be provided for protecting the interest of the nation in the various matters that 
arise from time to time, sucli as court costs, witness fees, and other expenses of 
litigation, traveling expenses, postage, stationery, and so forth : Therefore, 

Be it enacted iy the legislature of the Chickasaic Nation, the governor is 
authorized to incur such expenses, including the items above mentioned, and to 
pay the same out of his contingent fund, and an appropriation therefor in addi- 
tion to the amount now fixed by law is hereby made to be so used and expended, 
if in his judgment the same shall be necessary, and such expenses as shall be or 
have been incurred, under the direction of the governor, shall be rendered in 
itemized accounts, and upon his approval thereof the national auditor shall 
draw his warrant therefor and the national treasurer shall pay the same, and 
such account shall be retained by the governor as vouchers for such expendi- 
tures out of his contingent fund for the infoi-ination ^tf the legislature, and this 
act shall talce effect and be in force from after its passage and approval. 

Recommended by R. H. Colbert. 

Passed the house this October 26, 1000. 



Attest : 

T. W. Greenwood, 

Clerk of House. 
Passed the senate this October 26, 1900. 



Attest : 

Wyatt Chigley, 

Secretary of Senate. 
Approved this October 26, 1900. 



L. V. Colbert, 

Speaker of House. 



W. M. Guy, 

President of Senate. 



Attest : 

B. H. Colbert, 

National Secretary. 



D. H. .Johnston, 
Governor of the Chickasau: Nation. 



It will be observed from this act that the governor w^as authorized 
to incur expenses, including court costs, witness fees, and other ex- 
penses of litigation, traveling expenses, postage, stationery, etc., and 



22 INDICTMENTS FOUND AGAINgT D. H. JOHNSTON ET AL. 

to i)ay the same out of his contingent fimd, and an appropriation was 
made^ therefor in addition to the amounts theretofore fixed by law, 
if in the judgment of the governor it should be necessary to make 
such expenditures. 

In the agreement of the Commission to the Five^ Civilized Tribes, 
with the Commission representing the Choctaw and Chickasaw In- 
dians, of April 23, 1897, which was ratified by Congress on June 28, 
1898, will be found the following provision concerning the submission 
of the acts, ordinances, or resolutions passed by the council of either 
of said tribes to the President of the United States for his approval. 

The provision is as follows : 

It is fnrtlior agreed that no act, orflinauce, or resolution of the council of 
either the (Mioctaw or Ciiickasaw tril)es in any manner affecting the land of the 
tribe or of tlie individuals after allotment, or the moneys or other property of 
the tribe or citizens thereof (except appropriations for the regular and neces- 
sary expenses of the goAerument of the respective tribes), or the rights of any 
persons to employ any kind of labor, or the rights of any persons who have 
taken or may take the oath of allegiance to the United States, shall be of any 
validity until approved by the President of the United States. When such acts, 
ordinances, or resolutions passed by the comicil of either of said tribes shall 
be apjiroved by the governor thereof, then it shall be the duty of the national 
ser-retary of said tribe to forward tl-.em to the President of the United States, 
duly certified and sealed, who shall, within thirty days after their reception, 
approve or disapprove the same. Said acts, ordinances, or resolutions, when 
so approved, shall be published in at least two newspapers having a bona fide 
circulation in the tribe to be affected thereby : and when disapproved shall be 
returned to the tribe enacting the same. (30 Stat., 512.) 

It will be observed that in this provision certain acts, ordinances, 
and resolutions are not required to be submitted to the President. 
The exception reads as follows : " Except appropriations for the 
regular and necessarj^ expenses of the government of the respective 
tribes." It is claimed that the officials of the Chickasaw Nation did 
not deem it necessary to present the acts making appropriation for 
expenditures for legal services and other actual expenses to the Presi- 
dent for his approval, in view of the exception heretofore noted. As 
to wdiether or not acts of that character come within the purview of 
the exception is a question which the Government is now seeking to 
have determined through the institution of civil suits to recover the 
amount of expenditures made under acts of that character. 

The indictment charges that Mansfield, McMurray & Cornish, and 
Johnston and Moseley conspired to defraud the Chickasaw Nation by 
not submitting legislation of that character to the President for his 
approval, but I have been unable to discover any evidence to prove 
the allegation that these men conspired to prevent such legislation 
being submitted to the President for his approval and with a view to 
defrauding said nation. If such conspiracy existed there has been no 
evidence presented up to the present time to establish the conspiracy. 

II. 

It is alleged that Mansfield. ^Mc^rurray & Cornish received pay- 
ments for salary and expenses under acts of the Chickasaw legisla- 
ture which had not been submitted to the President for his approval. 

There is no question but that disbursements were made to Mans- 
field, McMurray & Cornish under acts of this character, and these 
defendants make no attempt to conceal this fact, but franklv admit it. 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 28. 

III. 

It is alleged that certain warrants for salaries and expenses that 
were issued in favor of Mansfield, McMurray & Cornish were in- 
dorsed over to D. H. Johnston, the governor of the Chickasaw Na- 
tion, by the said Mansfield, McMurray & Cornish. 

Upon completion of my investigation at Ardmore I proceeded to 
South McAlester and had an interview with Mr. Cornish, and asked 
him if he was willing to place at my disposal for examination their 
books and papers showing their transactions with the Chickasaw Na- 
tion. He replied that he would be glad to submit them for such pur- 
pose, and did place them before me for examination. 

With respect to the above allegation in the indictment, I found 
upon an examination of the books and papers of Mansfield, Mc- 
Murray & Cornish that warrants issued in their favor by the treas- 
urer of the Chickasaw Nation for salary and expenses had, in certain 
cases, been turned over to D. H. Johnston, the governor of the Chick- 
asaw Nation. Their books and papers show, however, that D. H. 
Johnston had, at various times, advanced to them out of his personal 
account funds to defray expenses in connection with matters arising 
involving the Chickasaw Nation, and that subsequently, when war- 
rants were issued to Mansfield, McMurray & Cornish for fees and 
expenses, they indorsed the warrants over to Johnston to reimburse 
him for advances he had made to them. Mansfield, McMurray & 
Cornish have the checks and drafts which passed through the banks, 
showing that Johnston had advanced such funds to them, and the 
amounts and dates of those checks and drafts correspond to the 
amounts of the warrants which they indorsed over to Johnston when 
said warrants were issued by the treasurer of the Chickasaw Nation. 
Their books, checks, and drafts concerning these transactions cor- 
respond to the allegations in the indictment. I do not believe there 
is any question but that Mansfield, McMurray & Cornish at that 
time were short of funds, and that occasions were arising in connec- 
tion with matters involving the Chickasaw Nation which necessitated 
the immediate expenditure of money. In any event, the records do 
not show that Mansfield, McMurray & Cornish converted to their 
own use any funds paid to them by the Chickasaw Nation, except 
what they received as salary and fees. Their books show in detail 
their expenditures from the time of their appointment as counsel for 
the Chickasaws down to the present time, 

IV. 

It is alleged that Mansfield, McMurray & Cornish presented false 
and fraudulent accounts for salary ard expenses to the Chickasaw 
Nation, which accounts were approved by the governor of said 
nation. 

Their books, checks, and other papers show that they did render 
services and incur expenses in connection with the amounts alleged 
in the indictment as having been paid upon false and fraudulent 
accounts. I went over carefully their books relating to these expen- 
ditures. Of course, it was practically impossible for me to tell in 
each and every case whetlier the expenditure was reasonable, but in 
those cases where they had charged for railroad fare, hotel accom- 



24 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

modations, stationery, etc., I considered the charges to be reasonable. 
There are hundreds of items of expenditures shown by their books, 
and from the vast amount of work done by this firm for the Chicka- 
saw Nation, T have every reason to believe that the legal services 
were rendered and that the expenses were incurred. 

In connection with certain expenses incurred by them and alleged 
in the indictment, Mr. Cornish frankly admitted, and their books 
show, that they did expend some money in connection with the elec- 
tion to ratify the agreement referred to in section 29 of the act of 
Congress of June 28, 1898 (30 Stat., 495) ; that they had in certain 
cases incurred expenses for special trains to convey voters from re- 
mote parts of the nation to the election, and that they did pay the 
expenses of these voters going to and from the election. It is a 
question whether or not this was a wise and judicious expenditure of 
money. But there is no evidence to prove, so far as I have been 
able to ascertain, that Ma^'Sfield. McMurray & Cornish converted any 
of the funds, which their books show as having been expended in 
that manner, to their own use or benefit. 

CONCLUSION. 

The district attorney, Mr. Walker, in his recommendation that the 
indictment be dismissed, dwells to a large extent upon the results 
obtained by Mansfield, McMurray & Cornish, while attorneys for the 
Chickasaw Nation. It certainly must be conceded that they did save 
millions of dollars for the Chickasaw Nation by the institution and 
prosecution of hundreds of cases for the purpose of dispossessing 
fraudulent claimants and in other matters, but in my investigation of 
the facts upon which the indictment is predicated I did not take this 
matter into consideration in any way, as it seems to me that the sole 
question to be determined at this time is whether or not these defend- 
ants conspired to defraud the Chickasaw Nation out of the funds 
alleged in the indictment, regardless of what they may have accom- 
plished for the nation. 

I have every reason to believe that if Mansfield. McMurray & 
Cornish would have been permitted to present their books and pajaers 
to the grand jury for the purpose of explaining their transactions 
with the Chickasaw Nation that bod}'^ would not have returned an in- 
dictmenl upon the evidence presented. It appears that McMurray 
was before the grand jury, although his testimony does not appear 
of record. It further appears that he requested Mr. W. B. Johnson, 
who Avas then district attorney, to withold the returning of the indict- 
ment until he could send to South McAlester for their books and 
papers. This was agreed to by Mr. Johnson, and Mr. McMurray at 
once called up Mr. Cornish over the long-distance 'phone and requested 
him to bi-iug all their books and papers relating to matters involving 
the Chickasaw Nation to Ardmore at once. This was on Saturday 
morning, and i\Ir. Cornish at once left for Ardmore. taking with him 
all their books, papers, etc., concerning the matters which the grand 
jury Avas investigating, and arrived at Ardmore at 12 o'clock that 
night. But it appears that the grand jury had returned the indict- 
ment at 4 o'clock in the afternoon. These men did not. therefore, 
haA^e an opportunity to present any documentary evidence before the 
grand jury to make a thorough explanation before that body. 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 25 

There is another phase of this case to be kept in mind, and that is 
that W. B. Johnson, who was United States attorney at the time the 
indictment was returned, was. up to the time of the employment of 
Mansfiekl, MclMurray & Cornish, attorney for the ChickasaAv Nation 
at a sahiry of $8,000 per annum. As to whether or not that had any- 
thing to do Avith the finding of the indictment, without any oppor- 
tunity being given to the defendants to make a thorough explanation, 
which had been agreed to by the district attorney, I am unable to say, 
but all the circumstances tend to show that Johnson was not exceed- 
ingly anxious to give McMuray an opportunity to make a full and 
complete explanation before the grand jur3\ 

In view of all tlie evidence presented to the grand jury, the allega- 
tions in the indictment, and after a careful examination of the books 
and papers of Mansfield, McMurray & Cornish, I have reached the 
conclusion that the Government could not hope to be successful in 
prosecuting this case to a final determination. As to whether or not 
additional evidence could be obtained upon a trial of the case is a 
question which it is impossible to determine at this time, but with the 
evidence now at hand, and with no prospect of obtaining anything in 
addition thereto, I feel confident that the facts do not justify a fur- 
ther prosecution on this indictment, and I have the honor to recom- 
mend that the United States attorney be instructed to dismiss the 
proceedings. 

Very respectfully, 



The Attorney-(texeral, 

Washhigfon, D. C. 



W. S. Gregg. 



EXHJBIT E. 
ME]\rORAKDlTM FOR THE SliCRETARY OF THE INTERIOR. 

Some days ago I made a memorandum with reference to this sub- 
ject for Commissioner Leupp. I did not keep a copy of it, but as I 
recollect it I took the position that it was not a question as to whether 
these men could be convicted, but as to the duty of the Government 
in the premises, in view of the fact that they had been indicted and 
that the indictments ought not to be dismissed unless you and the 
Attorney-General were satisfied that the grand jury which indicted 
them was packed against them. 

The report of jNIr. Gregg is clear and seems to cover the case in its 
entirety, and it puts an entirely different phase thereon. It shows (1) 
that the circumstances under which the indictment was obtained 
were not, to say the least, in keeping with good criminal practice; (2) 
that the evidence introduced was not sufficient to warrant the grand 
jury in finding a true bill; (3) that the evidence that the Govern- 
ment now has is undoubtedly insufficient to justify a conviction if the 
indicted persons are tried: and (4), most important of all, that not 
one penny of the money supposed to have been misused reached the 
pockets of Mansfield. McMurray & Cornish. This being true, the in- 
dictment and charge of consjoirac}^ would fall from its own weight. 

You now have had the recommendation of United States Attor- 
ney Walker and that of Mr. Gregg, who it seems from his report gave 



26 INDICTMENTS FOUND AGAINST D. H, JOHNSTON ET AL. 

the case, with all the evidence and everything relating thereto of 
which he could secure possession, a careful, painstaking, and thor- 
ough investigation, that the indictments be dismissed. I have care- 
fully analyzed Mr. Gregg's report, and, in view of what is said 
therein, I am firmly convinced that the indictments should now be 
dismissed, and I so recommend. 

G. A. ^7V. 

May 4, 1907. 



Exhibit F. 

St. Louis. June 2^. 1907. 

My Dear Mr. Bonaparte : In obedience to the instructions contained 
in your letter of May 9, I have carefully examined all the documents 
that have been forwarded to me from your Department and from the 
Department of the Interior. I find that in a good many instances 
I have been furnished duplicates; that some of the papers do not 
appear to refer to the immediate question presented, and that in 
other cases documents, while referring to the general inquiry, have 
no immediate bearing upon the decision which I am asked to make. 
Even so, a considerable volume remains for the careful examination, 
which I have endeavored to make. 

I find, among other things, that it has been the evident purpose of 
the prosecution to impress the authorities with the fact that the 
defendants have been guilty of different kinds of misconduct, and 
have in many ways taken advantage of the Indians: and that for 
these reasons the prosecution ought to be insisted upon. I find, also, 
that the defendants have endeavored to cast doubt upon the impar- 
tiality of the prosecution, claiming that the former district attorney 
had himself been guilty of conduct not unlike that which is now 
charged in the indictment; that he was ]:)rejudiced, and that some of* 
the members of the grand jury were likewise actuated by a feeling 
of resentment, to be attributed to litigation which the firm of Mans- 
field, McMurray & Cornish had instituted for the Indians against 
them. 

My first conclusion is, that while circumstances of this kind may 
ultimately be of value in determining the weight of e^ddence, they 
can not be conclusive in deciding whether or not the prosecution ought 
now to be proceeded with. 

I have therefore assumed that an answer to your inquiry calls for 
a decision, first, as to the sufficiency of the indictment; second, if the 
indictment is sufficient, then as to the sufficiency of the evidence to 
give it support. Proceeding with the questions in that order, I con- 
fess to some hesitancy in undertaking to answer the first one. My 
experience in the practice of the criminal- law is extremely limited, 
and I am therefore not really able to cope with the technical ques- 
tions which the form of the indictuient may present. I do feel at 
liberty, however, to say that the form of the indictment does not 
impress me favorably. It appears to be hastilj'^ drawn, charging both 
governors with conspiracy throughout, regardless of the terms for 
which they served. Beyond that, the indictment charges the collec- 
tion of Indian funds upon fictitious demands; but it does not set out 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 27 

the offense with any degree of particularity. It appears in the main 
to rely upon the charge that the issuing of the warrants was im- 
proper, because the contracts under which the attorneys proceeded 
were made iii pursuance of acts that the President had not approved, 
and because the warrants were issued and paid upon insufficiently 
itemized accounts. Without undertaking at this time to finally pass 
upon this feature of the case, I will say that it does not inspire me 
with confidence. 

This brings me to the second question, in which I believe you to be 
more especially interested, certainly so far as my participation in its 
settlement may go. 

Does the evidence upon which the prosecution may expect to rely 
support the indictment, or, indeed, can it support any offense which 
the prosecution may have sought to present by the indictment ? 

Upon this point the chief contention seems again to be that the 
several acts of the Chickasaw Nation under which the two contracts 
with Mansfield, McMurray & Cornish were made were not submitted 
to the President for his approval and were therefore without validity. 
The conclusion appears to be drawn that if the acts lacked validity 
then an}^ payment made under contracts entered into in pursuance of 
these acts or either of them constitutes a crime. I can not follow 
this argument. To begin with, it is a very close question whether or 
not these acts should have been submitted to the President for his ap- 
proval. It is apparent that there is a conflict of opinion upon that 
branch of the case. Competent representatives of the Department of 
Justice seems to incline to the opinion that these acts did not come 
within the provision of the agreement of June 28, 1898. 

I incline to the view that the employment of counsel and the in- 
curring of ordinary expense in litigation for the protection of the 
ordinary interests of the nation might well be held to fall within the 
exception to the provision of the agreement. This being so. I can not 
believe that a prosecution for crime can be successfully based upon 
a mistaken but honest interpretation of this agreement. Of course 
we are all familiar with the general rule that everyone is presumed 
to know the law. But we also know that to convict of crime the 
intent nuist be found. In this case the charge is conspiracy, and 
once admitted that the interpretation of the treaty upon which the 
defendants acted can be honestly entertained I fail to see how a con- 
spiracy can be predicated upon the bare fact of the failure to sub- 
mit the acts for the President's approval. This conclusion, it ap- 
pears to me, is sustained by the further circumstance that no secret 
was made of these transactions. These acts were public in the Chick- 
asaw Nation, the contracts were public, the expense accounts were 
public, open to the inspection of any one interested: and, indeed, 
it appears that the entire situation was called to the attention of 
representatives of the Department of the Interior as early as 1902, 
that copies of expense accounts reached the Department from time 
to time, and that, therefore, impliedly, at least, the officials of the 
Department in control of this Indian tribe and its interests were ad- 
vised of and consented to the manner in which this business was con- 
ducted. 

It is true one of the witnesses before the grand jury testified that 
the question, wliether or not the acts of the Chickasaw Nation in 
question should be submitted to the President for his approval, was 



28 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

the subject of discussion between him and Chief Johnson, and that 
the chief was opposed to such submission. But the same witness 
indicates that the act was finally forwarded by him with the knowl- 
edge of the chief and apparently with his consent. The attorneys 
are not referred to one way or the other. I do not believe that such 
conduct can substantiate a charge of conspiracy. Nor do I think that 
the case is materially strengthened by the fact that after the Presi- 
dent's disapproval (to which the same w^itness testifies, but as to 
which nothing fu.rther is found in the record) the chief proceeded 
under the act upon the theory that the President's approval was 
unnecessary. After all this only brings us back to the first proposi- 
tion. There is nothing in this branch of the case to sustain the 
charge of a conspiracy to collect moneys from the Chickasaw Nation 
upon fictitious claims, or, indeed, to justify the conclusion that the 
belief that the President's approval was unnecessary was not honestly 
entertained. 

It is further contended that the defendants should be prosecuted 
because,^ the moneys named in the indictment were collected upon 
insufficiently itemized statements. I can not believe that a charge of 
conspirac}' can be maintained upon such slender grounds. It is true 
these statements should have been itemized, and it may be true that 
this was insufficientlj^ done in these cases. AYhat is proper itemizing 
and what is a bill of particulars has been the subject of considerable 
doubt. But it seems to me that where a party submits a statement 
in which he refers to the cases which he has had in hand, and gives 
the totals of his expenditures in connection with those cases, and such 
a statement is allowed and paid without objection, it can not be possi- 
ble to sustain a charge of conspiracy' upon this conduct alone, without 
more. My conclusion, therefore, is that the mere fact that the pro- 
visions of the acts which require or contemplate the itemizing of 
statements have not been strictly complied with can not in itself fur- 
nish sufficient ground for prosecution in this case. 

This brings me to what I regard to be the real merit of the inquiry. 
Were the expenses for which Mansfield, McMurray & Cornish pre- 
sented bills actually incurred, or did the attornej-s present fictitious 
bills, and. if so, did they do it Avith the knowledge and consent of the 
several governors of the Chickasaw Nation; and maj^ the charge of 
conspiracy be supported by such a state of facts? 

I confess that this branch of the inquirj^ has given me some trouble ; 
probably more than it seems to have caused officials who have been 
asked to investigate. This may be explained bj^ the fact that these 
officials have had the opportunity to inspect the books and the ac- 
counts, and have been in a position in other ways to satisfy themselves 
as to some features that do not appear to be well explained by the 
documents placed at my disposal. I can not say that the amounts in- 
volved have impressed me as necessarily large. Of course, I do not 
refer to the $750,000 fee, the contract for which and the Congressional 
legislation in connection with which evidently have no innnediate 
bearing upon this case. Neither do I refer to the other fees allowed 
under the two contracts which are in question, because, if it be true 
that acting under the contract in the absence of the President's ap- 
proval does not in itself furnish sufficient ground for an indictment, 
then these fees were, for the purposes of this inquiry, properly al- 
lowed and paid. 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 29 

The question of the amounts collected, therefore, arises only as to 
the expenditures and costs outside of fees; and when we take the total 
amount paid out by the nation on this account, and distribute it over 
the number of years covered by the employment, I confess the 
amounts do not impress me as being necessarily large. The affairs of 
the Chickasaw Nation were then undergoing changes that made the 
incurring of large and varied expenditures inevitable. To that extent 
I agree with the conclusion reached by the other inquiries ; assuming, 
of course, as I do, and as the testimony furnished seems to show, that 
the expenditures charges for covered court costs, witnesses' fees, even 
constables' fees, traveling expenses, etc. 

Assuming, however, that on their face these allowances for ex- 
penses, etc., do not seem large, my difficulty is not necessarily over- 
come. I see that the amount of $2,700 allowed for expenses under 
the first contract was collected in full for each year. On the face of 
the statement it looks as though the attorneys had assumed the right 
to receive this amount whether it was actually expended or not. 
Clearlj', if the expenditures do not reach that amount the attorneys 
were not entitled to collect it ; and the rightful collection must there- 
fore rest upon the assumption that the expenditures exceeded, or at 
least reached, the sum to wliich the first act limited those expend- 
itures. I have nothing before me to satisfy myself upon that point, 
unless I am to accept the result of other investigations upon this 
point, as well as the absence of damaging testimony before the grand 
jury. I am impressed, of course, with the fact that Mr. Gregg, espe- 
cially, in his carefully prepared report, specifically states that he has 
examined the books and the accounts of expciditure and that they 
tally with the amounts charged. Assuming this to be correct, and 
that the books theniseives are correct, as I am not in a position to 
say from my own investigation, my difficulty in this respect would 
be disposed of. In like manner I may accept the explanation of the 
warrants for expenses turned over direct to Governor Johnson. 

A similar difficulty, although less calculated to arouse question, 
arises as to the expenses paid under the second contract. Itemizing 
here was also unsatisfactory. While the failure to itemize properly 
is not itself a crime, it is, of course, possible that insufficient itemiz- 
ing was a cloak for a crime. Again, Mr. Gregg has examined the 
books and accounts and reports that they tally. To repeat, if I am 
to accept his conclusion as to the correctness of the charges, the quep 
tion is, in my opinion, answered. As the result of my own inquiry, 
I can not answer for this conclusion. But, after all, no one can know 
of his own knowledge. My inquiry, like Mr. Gregg's, would be con- 
fined to a comparison of the books and the accounts, and to an inves- 
tigation into the probability that the moneys were actually and prop- 
erly expended. Presumably, I would reach the same conclusion. 

Another difficulty grows out o:" the fact that in one of the many 
statements filed in connection with the case (among others in Mr. 
Gregg's report), it is made to appear that the attorneys charged the 
nation for moneys which they had paid out to cover expenses of 
members of the nation in attending the election to ratify the treaty 
of 1898. I am not familiar with the law or practice upon this sub- 
ject. Inasmuch as little importance seems to have been attributed to 
this statement, I am disposed to think that perhaps it was customary 
to have the nation pay the traveling expenses of voters. Without 



30 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

a satisfactorv exjilanation, I would not be willing, however, to assume 
that such an expenditure was properly made by the attorneys, and, if 
made, was proj^erly chargeable to the nation's treasury. 

To repeat, I have no explanation for this item which to me seems 
satisfactory. I have not thought it necessary to await such explana- 
tion because, if this expenditure was wrong, the offense, if any, has 
undoubtedly been barred. This is the one item brought to my atten- 
tion which, on its face, would appear to sustain the charge of con- 
spiracy named in the indictment. It is fair, however, to say that I 
have not pursued the inquiry, and do not, therefore, make the accusa- 
tion, because the offense, if there was one, would be barred, and be- 
cause no such item is included in the indictment itself. The earliest 
item in the indictment is November, 1902, and the election in question 
was held, as I read it, in December, 1898. I have referred to this 
particular matter, therefore, not because it is of decisive importance, 
but because of its possible bearing upon the nature of the immediate 
charge and the propriety of further prosecution. 

I have dwelt upon the circumstances of this case with as much 
detail as, in my judgment, they will bear. My conclusion, therefore, 
is that if I am to accept the results of the inquiries into facts already 
made, or if I am to rely upon the evidence produced before the grand 
jury alone, then the indictment can not be sustained, and upon that 
assumption I should have no hesitancy in recommending that it be 
nolle prossed. The district attorney in charge of this prosecution is 
upon the ground, where he can make every possible investigation of 
the facts, and has come to the conclusion that the prosecution is hope- 
less. That recommendation is joined in by a special representative 
of the Department sent to the particular locality to make his own 
inquiry, and who makes what appears to be a very careful report. 
These recommendations have served to change the attitude of the 
Interior Department. Under such conditions I can find no justifica- 
tion, with the facts as so far presented to me, to insist upon a prosecu- 
tion which would put defendants to a needless and costly trial and 
would involve the employment of special counsel and would neces- 
sarily incur very heavy expense to the nation. 

If, on the other hand, I am not free to act upon Mr. Gregg's find- 
ings of facts, or if tliere is promise of supplementing the evidence 
before the grand jury, then a further inquiry may, of course, disclose 
irregularities in the accounts and books of the attorneys which so far 
have not been made to appear. It can not be denied that the running 
of three employments with the nation at one and the same time, the 
fact that the attorneys appear to have practically financed the affairs 
of the nation, and that the accounts rendered do not on their face 
furnish the needed information is calculated to arouse such an 
inquiry. Upon the whole, therefore, my conclusion is this : In so far 
as the indictment relies upon the bald circumstances that the acts of 
the Chickasaw Nation were not approved by the President, or that 
the expense accounts rendered by the attorneys were not properly 
itemized, the indictment can not, in my opinion, be sustained. 

If I am to pass upon the remaining questions of fact in the light 
of the documents before me — that is, the testimony before the grand 
jury and Mr. Gregg's conclusions — then I also recommend the dis- 
missal of the indictment. If, however, I am to conclude upon the 
facts in dispute after an independent inquiry, I, of course, am not 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 31 

now prepared to state it. To do that I would have to visit the Terri- 
tory, or have persons in possession of facts come here. 

If, in other respects, I have left untouclied or have unsatisfactorily 
disposed of any feature of this case, I shall, of course, hold myself 
ready to comply with such instructions as you may see proper to 
give me. 

In the meantime I venture to express my surprise that no civil 
proceedings have been instituted to recover for the Chickasaw Nation 
the money of which, as it is contended, they have been wrongfully 
deprived. It seems to me such a proceeding might serve the double 
purpose of recovering the funds and developing the truth of this 
prolonged controversy. 

Respectfully submitted. 

Charles Nagel. 

Hon. Charles J. Bonaparte, 

Department of Justice^ 

Washington, D. C. 



Exhibit G. 

Department of the Interior, 
Washington^ September 4, 1907. 
Sir : I have the honor to transmit herewith letter from the Acting 
Commissioner of Indian Affairs, dated July 27, 1907, approved by 
me, reporting upon your communication dated June 29, 1907, trans- 
mitting a copy of a letter from Charles Nagel, St. Louis, Mo., dated 
June 24, 1907, in regard to indictments against Mansfield, McMurray 
& Cornish and others for conspiracy to defraud the Chickasaw 
Nation. 

I concur in the recommendation that the indictments referred to 
be dismissed, and that suits be instituted against the parties indicted 
for the moneys alleged to have been wrongfully received, if, in your 
judgment, such suits can be successfully maintained. 

The Department will be pleased to have the original papers re- 
ferred to by Mr. Nagel returned for its files when they shall have 
served the purpose for which they were transmitted. 
Very respectfully, 

G. W. Woodruff, 

Acting Secretary. 
The Attorney-General. 



Exhibit H. 

Department of the Interior, 

Office of Indian Affairs, 

Washington, July 27, 1907. 
Sir: The office is in receipt of departmental letter of July 22, 
1907, transmitting for consideration and early report a copy of a let- 
ter from the Attorney-General dated June 29, 1907, inclosing a copy 
of a letter from Charles Nagel, dated St. Louis, Mo., June 24, 1907, 
in regard to indictments against Mansfield, McMurray & Cornish 



32 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

and others for conspiracy to defraud the Chickasaw Nation. Mr. 
Nagel seems to full}^ cover the subject and reaches the conchision 
that the indictments should be dismissed. He does not think there 
is sufficient evidence to justify the Government in prosecuting the 
persons who have been indicted, and from his letter it seems that he 
doubts whether there was sufficient evidence before the grand jury 
on which to found the indictments. 

United States Attorney Walker and Mr. Gregg, of the Department 
of Justice, have heretofore recommended that the indictments be di^ 
missed. Their letters are not before the Office, but from what the 
Office is able to recall of what was said by them, and in view of Mr. 
Nagel's recommendation, it is believed that no good purpose would be 
served b}^ bringing to trial Mansfield, McMurray & Cornish and the 
others indicted with them, and it is therefore recommended that the 
Department of Justice be requested to instruct the proper United 
States attorney to dismiss the indictments. 

You call the attention of the Office to the last paragraph of Mr. 
Nagel's letter, in which he expresses surprise that civil proceedings 
have not been instituted to recover the Chickasaw Nation moneys 
alleged to have been wrongfully used by Mansfield, McMurray & 
Cornish and others. The Office understands that Mr. Nagel has ref- 
erence to certain moneys expended in accordance with the provisions 
of certain acts of the legislature of the Chickasaw Nation, which acts 
were not submitted to the President for approval, and which prob- 
ably were invalid without his approval. There are now pending in 
the Choctaw Nation two or three suits involving this question, and it 
does not seem that it would be necessary to begin suit on behalf of the 
Chickasaw Nation until the Choctaw suits are disposed of and the 
question determined. However, the Office sees no objection to the 
institution of suits on behalf of the Chickasaw Nation pending the 
determination of the Choctaw cases, and if such action is taken and 
the court holds that the acts involved in the Choctaw suits did not 
require the approval of the President, the Chickasaw suits can then 
be dismissed and but little expense will have been incurred. 

The papers received with your letter are returned. 
Very respectfully, 

C. F. Larrabee, 

Acting Gommissioner. 

The Secretary of the Interior, 

July 30, 1907. 

Approved : 

G. W. Woodruff, Acting Secretary. 



I 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 33 

♦ Exhibit I. 

United States oe America, 

Indian Territory, Southern District, ss: 

In the United States court for the southern district of the Indian 
lerritory, sitting at Ardmore, for the May term, 1905. 



Indictment for conspiracy. 



United States 

V. 

T>. H. Johnston, P. S. Mosely, 
George Mansfield, J. F. McMur- 
ray, and Melvin Cornish, de- 
fendants. 

The grand jurors of the United States of America, duly selected, 
summoned empaneled, sworn, and charged to inquire within and for 

!i u ^.?^ *^'^ southern district of the Indian Territory, in the name 
^^1 ^ the authority of the United States of America, upon their 
oaths do find present and charge that one D. H. Johnston, one P. S 
Mosely one George Mansfield, one J. F. McMurray, and one Melvin 

^Zl ' f ^""^^nno ^"^ ■^]^- ^'^^''^ J^^^y unknown, on the 2d day of No- 
vember A. D 1902, withm the southern district of the Indian Ter- 
ritory, did unlawfully and feloniously commit the crime of conspir- 

Spk-T^^at''.?^^'''^ ^^^^^'^^ ^^^ United States by defrauding 
the Chickasaw Nation, committed as follows : 

That during all the times herein mentioned the said P. S. Moselv 
was governor of the Chickasaw Nation except from September, 1904, 
when the said D H. Johnston was governor of the Chickasaw Nation 
and during all of these times the said George Mansfield, J. F McMur- 
ray, and Melvin Cornish were each citizens of the United States and 
not members of any Indian tribe or nation and were associated to- 

lrlM™;I"c;?ni^"™'^-^ ^"'^^ ^^" ^^^"^ ""'^^ ^'^^'^ ^' ^-^fi^l^' 
That the said Chickasaw Nation was at all times herein mentioned 
composed of the Chickasaw tribe of Indians and duly authorized and 
recognized by the laws of the United States as political dependencv 
^nd government, under the name of the Chickasaw Nation, having a 
governor, audi or public accounts, national treasurer, and legislature: 
Jiat to the said Chickasaw Nation there belonged in the Treasury of 
^he United States large sums of money known as trust and invested 
^unds coal and aspha turn royalty funds, and funds derived from the 
i5ale of lots m town sites. 

That at the time and place aforesaid and at all times herein men- 
^oned the said D H Johnston, P. S. Mosely, George Mansfield, J. F. 
^cMurray and Melvm Cornish, and others to the grand jury un- 
mown, did falsely feloniously, unlawfully, and wickedly ion^pire, 
,ombine, confederate, and agree together among themselves to de- 
n thp t" ^ '^'I'll! Nation out of large and divers sums of money 
Nation ^""^^ belonging to the said Chickasaw 

nr^ufL^ pursuance to and to effect the object of said conspiracy, 
ombmation, confederacy, and agreement said P. S. Mosely, as gov- 
S. Doc. 398, 60-1 3 



34 



INDICTMENTS FOUND AG^UNST D. H. JOHNSTON ET AL. 



ernor of the Chickasaw Nation, caused the auditor public accounts, 
without authority of hiw. to issue at divers times certain warrants 
u]>on the national treasurer of the Chickasaw Nation, payable to the 
said Mansfield, McMurray & Cornish, at such times and in amounts as 
follows : 



No. 



801 
802 
803 
804 
805 
806 
807 
943 
944 
945 



Date. 



November 2, 1902.. 
November 26, 1902. 
November 8, 190-2-_ 
November 12, 1902. 
do 



do 

do 

April, 16, 1903. 

do 

do 



Amount. 



$2,700.00 

2,500.00 

2,500.00 

1,000.00 

2,50.00 

100. OO 

515.00 

396.05 

1,628.75 

365.75 



No. 



1476 
1477 
1478 
1479 
1480 
1485 
2235 
2237 



Date. 



February 3, 1904. 

do 

do 

do 

do 

do 

July 28, 1904 

do 

Total 



Amount. 



$2,000.00 
l.-SSS.OO 
1,667.00 
1,641.95 
1,000.00 
2,700.00 
3,879.45 
2,700.00 



28,876.90 



That in pursuance to and to effect the object of said conspiracy, 
combination, confederacy, and agreement said D. H. Johnston, on 
th^ 14th day of February, 1905, within the district- and Territory 
aforesaid, Avithout authority of laAv, caused the auditor of public ac- 
counts to issue a certain warrant upon the national treasurer of the 
Chickasaw Nation, payable to the said ^Mansfield, McMurray & Cor- 
nish, No. 112, for the sum of $2,500. 

That each of said warrants hereinbefore named were issued upon 
a false, fictitious, and pretended claim that the amounts therein named 
were for actual expenses of the said Mansfield, McMurray & Cornish 
while engaged as attorneys for the Chickasaw Nation. 

That in pursuance of and to effect the object of said conspiracy, 
combination, confederacy, and agreement said D. H. Johnston, P. S. 
Mosely, George Mansfield, J. F. McMurray, and Melvin Cornish, and 
each of them, did present said false and fraudulent warrants, well 
knowing they were false and fraudulent, to the national treasurer of 
the Chickasaw Nation, and caused the same to be paid by the said 
national treasurer out of the trust funds of the said Chickasaw Nation 
then in the subtreasury of the United States at St. Louis, Mo.; that 
at the time such moneys were paid said D. H. Johnston, P. S. Mosely, 
George Mansfield, J. F. McMurray, and Melvin Cornish, and each of 
them, w^ell knew that they Avere not lawfully entitled to said money, 
and well knew that said items of expenses were fictitious and fraudu- 
lent, and well knew that no itemized statement of expenses, as required 
by law, was ever presented, allowed, or approved, and well knew that 
said money was obtained without consideration or without any au- 
thority of law, but falsely, fraudulently, feloniously, unlawfully, and 
wickedly did then and thereby contrive and intend to cheat and de- 
fraud the Chickasaw Nation out of said moneys, to wit, the sum of 
$31,376.1)0; and did then and thereby cheat and defraud the said 
Chickasaw Nation out of the moneys aforesaid ; and did embezzle and 
convert to their own use the aforesaid moneys, contrary to the form 
of the statute in such case made and provided and against the peace 
and dignity of the United States of America. 

(Signed) W. B. Johnson, 

United States Attorney. 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 85 

Exhibit J. 

Department of Justice, 

July SI, 1905. 
Dbak Mr. Attorney-General : I received to-day your letter of 
the 28th instant, with inclosiires from Mr. Cecil A. Lyon, of Sherman, 
Tex., and after considering- the subject in question sent Mr. Lyon the 
following telegram: 

Am directed to have your Indian Territory matter inquired into by competent 
person. Think it would be well to present case to me here, at least preliminarily, 
provided I am satisfactory person. Frank answer by wire will not prejudice 
your friends. 

At the time the indictments were found against Mansfield, Mc- 
Murray & Cornish, Marshal Colbert, and others Colonel Mosby was 
at Ardmore, Ind. T., with authority to go before the grand jury. He 
was not concerned with the ^lansfield matter, but with the question 
of fraudulently reissued Chickasaw warrants. He heard the testi- 
mony of one of the members of the Mansfield firm, however, and came 
back with a strong impression that they were guilty. He showed me 
since a letter from the district attorney, Mr. Johnson, expressing the 
same opinion. Colonel Mosby knows little about the matter, and I 
attach no great importance to his impression, while Johnson is said 
by the Mansfield firm to be unfriendh', for reasons stated in Mr. 
Lyon's communications, whicli you saw. 

I should like you to know in a general way something about this 
matter at this time. The firm of attorneys, acting for the Choctaw 
and Chickasaw nations, obtained legislation establishing the Choctaw 
and Chickasaw citizenship court to review decisions of Judge Town- 
send, in whose court the indictments have been found, and other 
regular judges of the Indian Territory, which decisions admitted to 
the rolls of tribal citizenship two or three thousand persons, who 
would have shared in the land allotments. The citizenship court has 
decided against most of them, and that has resulted in saving to the 
tribes lands said to be worth as much as $15,000,000. 

The firm had contract Avith the Indians for 9 per cent of what they 
should save, which percentage would have amounted to considerably 
over a million dollars. This contract the Secretary of the Interior 
refused to approve, proposing to allow a fee of $250,000. which the 
firm refused. They went to Congress and had the question of a rea- 
sonable fee submitted bv law to the citizenship court, which allowed 
them $750,000. 

An injunction proceeding against Secretaries Hitchcock and Shaw- 
was begun last winter to prevent payment of this fee, the bill charging; 
all kinds of frauds, etc. I represented the two Secretaries. 

Secretary Hitchcock was disposed to believe the charges of fraud 
and, at all events, took and still takes a very unfavorable view of the 
firm. The bill was dismissed. 

It has been suggested, and seems to be believed by some people, that 
the firm bought its way through Congress in the matter of the fee 
legislation, and naturally the attorneys of the citizenship claimants 
Avho were defeated by the eilorts of the firm and those claimants 
themselves are not overfriendly toward the firm. And some small 
people are doubtless envious about the big fee. 



36 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 

Of course an indictment having been found, what is now asked of 
the President is a very serious thing, and may give rise to much criti-. 
cism if he should decide to have the inplictment dismissed and action 
taken other than the trial of the case by the court and jury. 

I shall therefore endeavor to be very careful before advising such 
action. 

Very truly, yours, 

Charles AV. Russell. 
Hon. W. H. Moody, 

Attorney-General. Boston, Mass. 



Exhibit K. 

Department of Justice, 
Washington, September' 29, 1905. 

Mr. Attorney-General : I duly received from you a letter dated 
July 28 last, inclosing a communication from Mr. C. A. Lyon, trans- 
mitted to you by the President, concerning an indictment of Mans- 
field, McMurray & Cornish, Governor Johnston, of the Chickasaw 
Nation, and others for conspiracy and embezzlement of Chickasaw 
funds. Your letter stated that the President was anxious to have the 
matter investigated and directed me to have a competent person make 
the investigation. 

I answered on July 31 last (copy hereto attached). As I told you 
in my answer. I wired Mr. Lyon on that da}^ as follows : 

Am directed to liave'yovu" Indiaii Territory matter inquired into by competent 
person. Think it would be well to present case to me here at least prelimi- 
narily, provided I am satisfactory person. Frank answer by wire will not 
prejudice your friends. 

I called Mr. Johnson, the district attorney, to Washington, and Mr. 
McMurray, of the firm of attorneys in question, was requested to 
come, and came. I had a long talk with Mr. Johnson, who had ex- 
pressed the opinion that the accused were guilty. 

Mr. McMurray had promised to bring his books and papers, but did 
not do so, and after a brief conference asked for time to prepare. 

A few days ago I had Mr. Johnson, Mr. McMurray, and his part- 
ner, Mr. Cornish, before me, with all the evidence and documents, 
and had my assistant, Mr. Lawrence, present during the examination. 

As I wrote you : 

Of course, an indictment bavins been found, what is now asked of the Presi- 
dent is a serious thing, and may give rise to much criticism if he should decide 
to have the indictment dismissed and action taken other than the trial of the 
case by the court and jury. I shall therefore endeavor to be very careful 
before advising such action. 

I have been, accordingly, very careful and deliberate, and have 
nevertheless reached the conclusion that the prosecution should be 
dismissed or nolled. 

The indictment of Governor Johnston, Governor Mosely, of the 
Chickasaw Nation, and members of the law firm goes upon the theory 
that these persons conspired together to obtain some of the funds of 
the Chickasaws by warrants drawn upon the Treasurer and issued 
by direction of the governor, based upon pretended expenses of liti- 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL, 87 

gation incurred by the firm on behalf of the nation, and that they 
embezzled the funds so obtained, and that no such expenses had been 
incurred and that no accounts such as required by the Chickasaw law 
and a contract with the firm had been presented by the firm. 

Sufficient facts were produced to show an apparent case, but it 
needed only an explanation and the production of some documen- 
tary evidence to make it fall to pieces. It was shown that one of 
the warrants had been made out payable to Governor Johnston him- 
self, and from this fact it was evidently inferred that this was a part 
of his share of the spoil. And much Avas made of the fact that the 
Chickasaw law under which most of the expenses were incurred had 
not been approved by the President; but it was believed to belong 
to a class of laws providing for the " regular and necessary expenses 
of the Government," which did not require the President's approval. 
This is probably correct, but if not correct, this is a point about 
which lawyers would naturally differ. 

I have not thought it my duty to decide this matter \ipon such 
technicalities, but have sought to ascertain whether the expenses 
were really incurred in good faith for the benefit of the nation or, 
on the other hand, the moneys were embezzled in pursuance of a 
criminal conspiracj^ 

It is established before me beyond any doubt that the former is 
true and that the indictment has done a great injustice to the per- 
sons indicted, four of whom, including Governor Johnston, were 
earnestly, intelligently, and successfully striving for the welfare 
of the Chickasaw Nation. 

I therefore recommend not only the dismissal of the prosecution, 
but the giving out of something like the following : 

The Department of Justice, by direction of the President, has 
carefullj'^ investigated the matter of the indictment of Governor 
Johnston, Governor Mosly, of the Chickasaw Nation, and Mans- 
field, McMurray & Cornish, attorneys for the nation, for a criminal 
conspiracy to obtain and embezzle the nation's funds under the false 
pretense of settling accounts for expenses of litigation on its behalf, 
and has reached the conclusion that the indictment has done a grave 
injustice to Governor Johnston and the attorneys. It will be remem- 
bered that these attorneys received a very large fee last winter out 
of the funds of the tribe for successfully conducting litigation to take 
from the citizenship roll several thousand persons who had been 
wrongfully admitted to citizenship and hence to share in allotment 
of land, and that a certain former officer of the tribe brought suit 
against the Secretary of the Interior, the Secretary of the Treasury, 
and Treasurer to prevent the payment of this fee. At that time prac- 
tically the same charge was brought against the attorneys, and the 
complainant then was one of those who appeared before the grand 
jury recently. Of course the contest over the right to enrollment 
of citizens and the consequent right to receive allotment engendered 
much bitterness against these attorneys, which was increased by their 
successful struggle to enforce the tribal taxes against merchants and 
others. The Department of Justice and the Interior Department 
have been in touch with them for a number of years and knew that 
they were actively and busily at work to further the interests of the 
Indians and uphold the hands of the Secretary of the Interior in 



38 INDICTMENTS POUND AGAINST D. H. JOHNSTON ET AL. 

protecting them. The indictment, therefore, came as a great sur- 
prise. 

Respectfully, Charles W. Russell, 

Special Assistant Attorney-General. 



Exhibit L. 

Office of United States Attorney, 

Southern District of Indian Territory, 

Ardmore, Ind. T., October 20, 1905. 

Sir: I am in receipt of a letter from Assistant Attorney- General 
Russell, dated October 14, 1905, inclosing his report to you " on the 
indictment of Mansfield, McMurray & Cornish and Governor John- 
ston," for conspiracy, with instructions to make such comment thereon 
as I might desire. 

It is useless for me to say that a request for me to comment on a 
report of a superior officer carries with it such embarrassment that I 
prefer to recite the facts, though lengthy, and let you judge whether 
my conclusion was correct that these defendants under the evidence 
before the grand jury which is yet to my mind unexplained, should 
have been indicted and subjected to a trial as other defendants; or 
that of Mr. Russell, who recommends not only a dismissal of the case, 
but that an apology be offered by the Department of Justice for the 
injustice done these defendants, and Mr. Ward, who is not one of the 
defendants in this indictment, but a witness against defendants. 

On May 20, 1905, Mr. Jenkins, representing the Interior Depart- 
ment, called at my office and submitted a statement of facts about the 
fraudulent recirculation of Chickasaw-school warrants by various 
parties, including our marshal, and Mr. Ward, deputy clerk, and re- 
quested that the matter be submitted to the grand jury, then in ses- 
sion at Ardmore. I was personally engaged in the court room in the 
trial of cases, and had two of my assistants at Pauls Valley attending 
the court there. I therefore requested Mr. Jenkins to wait until I 
could communicate with you, which T did, requesting that some special 
officer be detailed to look after this matter. You immediately wired 
me to give the matter my personal attention, and sent Col. John S. 
Mosby to be present and assist in the investigation. The grand jury 
was composed of men perhaps unexcelled in intelligence and integiTty 
anywhere. (I inclose a list of their names and occupations.) Many 
of these jurors personally knew Mr. ISIcMurray, and some had been 
his friends for more than twenty years. 

The investigation began, involving not these defendants, but others. 
On the second day appeared on the scene ma'\v of the defendants, in- 
cluding Ward, Colbert. Johnston, and McMurray, none of whom 
lived here, who began demanding of the grand jury that they be per- 
mitted to come in and testify. Although it is an unusual thing to 
permit defendants to appear before a grand jury, I felt that a 
thorough investigation should be made, and the grand jury not only 
let them appear but Mr. Ward sent in two or three other witnesses. 
Mr. McMurray was. for some unknown reason to me, not permitted 
to come before the grand jury until the last day, and then his ex- 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 3V> 

planations were so unsatisfactory they injured instead of helped his 
case. During the investigation of others, as I have stated, evidence 
incriminating Governor Johnston, ex-Governor Mosely, and Mans- 
field, McMurray & Cornish developed. This they seemed to know 
almost as soon as I did, and they at once be^an to exercise every influ- 
ence within their power to prevent an indictment. I have since 
learned that they had friends in Washington interceding at that time 
so strenuously that Colonel Mosby received a telegram from the De- 
partment to " see that Mansfield, McMurray & Cornish had a square 
deal." 

I will confine myself to the evidence against Mansfield, McMurray 
& Cornish, Governor Johnston, and ex-Governor Mosely — ^Ward 
being in another and different indictment, and not having the slightest 
connection with them. 

In August, 1898, D. H. Johnston was elected governor of the 
Chickasaw Nation for a period of two years. In September, 1899, the 
following act was passed by the Chickasaw legislature and approved 
y the President: 

AN ACT Approving the contract of Mansfield, McMurray and Cornish for legal services, 
and making appropriations therefor. 

Whereas on July twentieth, eighteeu hundred and ninety -nine, 'Pouglas H. John- 
ston, governor of the Chickasaw Nation, entered into a contract witli Mansfield, 
McMtirray and Cornish, attorneys at law, to represent the Chickasaw Nation in 
all matters of citizenship now pending before the Dawes Connuission, the Secre- 
tary of the Interior of the United States, and the United States courts, to the 
final completion and approval of the rolls of Chickasaws, said contract to be 
subject to be annulled by the legislature of the Chickasaw Nation after two 
years from the date thereof; and 

Whereas it is provided in said contract that the said Mansfield, McMurray 
arid Cornish are to receive as a compensation for such legal services, the sura 
of five thousand dollars per annum, together with their actual and necessary 
expenses incurred in the performance of such services, such expenses to be 
rendered in duly verified accounts to the goxernor of the Chickasaw Nation on 
the twentieth day of each montli, to be certified by him for payment, as pro- 
vided by the terms of said contract; and 

Whereas in the trial of the contested cases of those claiming Chickasaw 
citizenship, before the Dawes Commission and the Secretai'y of the Interior, 
and in certain proceedings now pending and to be instituted in the United 
States courts in connection with citizenship matters, it will be necessary to 
incur expenses in the way of witness fees, mileage, court costs, and so forth ; 
Therefore 

Be it enacted by the legislature of the Chk-kasair Nation, 

Section 1. That the said contract entered into on July twentieth, eighteen hun- 
dred and ninety-nine, between Douglas H. .Johnston, governor of the Chickasaw 
Nation, on the part of the Chickasaw Nation, and Mansfield, McMurray and Cor- 
nish, is hereby ratified and approved. 

Sec. 2. That an appropriation is hereby made therefor out of any funds belong- 
ing to the Chickasaw Nation not otherwise appropriated, and the auditor of pub- 
lic accounts of the Chickasaw Nation is hereby directed to issue his warrant on 
the treasurer of the Chickasaw Nation for such salary and expenses, and the 
treasurer is directed to pay the same out of any funds of the Chickasaw Nation 
in his hands or that may come into his hands not otherwise appropriated ; Pro- 
vided, That said expenses, including traveling expenses, clerical assistance, post- 
age, and stationery of attorneys, per diem and mileage of witnesses, court costs, 
and such other items of expense as may be incurred in the performance of such 
services, shall not exceed the sum of twenty-seven hundred dollars per annum. 

Sec. 3. That this act shall take effect and be in force from and after its pas- 
sage and approval by the President of the United States. 

During the year 1900 every citizenship case pending in the courts 
of this district was disposed of, a majority of them having been dis- 
posed of before their employment, and the citizenship court did not 



40 INDICTMENTS FOUND AGAINST D, H. JOHNSTON ET AL, 

begin work until about January 1, 1903, on a rehearing of these cases. 
On October 26, 1900, the legislature passed an act as follows: 

AN ACT To provide for regular and necessary expenses to protect the interest of the 
nation, and directing payment of the same out of the contingent fund of the governor. 

Whereas past experience has shown that regular and necessary expenses 
must be iirovided for protecting the interests of the nation in the various mat- 
ters that arise from time to time, suc]i as court costs, witness fees, and other 
expenses of litigation, traveling expenses, postage, stationery, and so forth : 
Therefore 

Be it enacted by the legislature of the Chickasaw Nation, The governor is 
authorized to incur such expenses, including the items above mentioned, and to 
pay the same out of his contingent fund, and an appropriation therefor, in ad- 
dition to the amount now fixed according to law, is hereby made, to be used and 
expended, if in his judgment the same shall ho necessary and such expenses as 
shall be or have been incurred, under the direction of the governor, shall be 
rendered in itemized accounts, and upon his approval thereof the national audi- 
tor shall draw his warrant therefor, and the national treasurer shall pay the 
same ; and such accounts shall be retained by the governors as vouchers for such 
expenditures out of the contingent fund, for the information of the legislature; 
and this act shall take effect and be in force from and after its passage and 
approval. 

These two acts just mentioned were the sole authorit}'^ for the em- 
ployment of this firm of attorneys and the expenditure of the moneys 
hereinafter mentioned from 1899 until this time. In 1899 an act was 
passed authorizing the governor to employ J. R. Burton as general 
attorney for two years. In 1901 an act was passed authorizing the 
governor to employ Z. T. Burton for two years as attorney. In the 
same year an act was passed to pay William Murray $800 for services 
rendered as attorney. 

I mention these facts to show that whenever the Chickasaws em- 
ployed an attorney it was onlj^ for two years at a time, and this has 
been their custom for the past fifty years. 

In August, 1900, Governor Johnston was reelected for a period of 
two years. It was claimed by Mr. McMurray that Governor John- 
ston employed them as general attorneys also, and promised to see 
that they were paid a salary not to exceed $5,000. He did not Imow 
whether this contract was oral or in writing nor for how long it was 
to run. 

Mr. Cornish, who was not present when the statement was made, 
subsequently stated that they were not employed for any stated 
amount, but could charge for services rendered, no maximum or min- 
imum being fixed; that the contract was oral, and no time fixed for 
expiration of same. Mr. McMurray further stated that during this 
time he made another agreement with Governor Johnston by which 
he was to endeavor to get Congress to pass an act authorizing a per 
capita payment of $240,000, this being a fund known as the "incom- 
petent fund, held in trust by the United States for incompetents. 
For this service, his firm, in the event of success, was to receive 
$15,000, only $2,500 of which has yet been paid'. He further stated 
that for the expenses incurred before the citizenship court they were 
to present monthly accounts, with vouchers, to the Secretary 'of the 
Interior for approval and receive payment ; that they now held more 
than $40,000 of this expense account which has not been presented for 
approval or payment, although the citizenship court ceased to exist 
last December. Mr. Cornish stated that the Chickasaws also owed 
them about $28,000, Avhich they had personally paid out. 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 41 

I don't think I am mistaken about these statements. If I am cor- 
rect, then the Chickasaw government is still indebted to them as 
follows: $12,500, $40,000, $28,000; total, $80,500. I presume the 
$40,000 item will be shared jointly by the Choctaw and Chickasaw 
nations. 

I submit a statement showing the amounts received by them from 
the Chickasaw Nation: 

For the year : 

1900 $13, 000. 00 

1901 20, 971. 35 

1902 22, 671. 11 

1903 10, 652. 78 

1904 26, 921. 40 

Total 94, 216. 64 

The acts of 1899 and 1900, copied in full, are the only laws author- 
izing the governor and these attorneys to do anything or draw any 
moneys. 

In addition to the above, Mr. McMurray stated that in a hot con- 
test in an election to ratify or defeat the supplemental treaty they 
hired people to go around and make speeches, give barbecues, etc., 
and this afterwards was paid out of the Chickasaw funds. I cite 
these several facts to show the extravagant and illegal use of funds 
by the governor and these attorneys, and I have only related a few 
of them. Under the indictment I can introduce any evidence tend- 
ing to show a conspiracy to embezzle the funds of the Chicaksaws. 

I submit now a sample copy of the way their accounts were item- 
ized, as provided for by the two acts above set out, all of the others 
being similar, the originals of which I have : 

EXPENSE ACCOUNT OF MANSFIELD. M'MUBRAY & CORNISH — GENERAL CONTINGENT. 

[From April 19, 1902, to October 18, 1902.] 

Account of expenses incurred by Mansfield, McMurray & Cornish under the 
direction of the governor of the Chickasaw Nation, under the act of the legisla- 
ture of the Chickasaw Nation approved October 26, 1900, in protecting the 
Interests of the nation : 

Traveling and other incidental expenses, court costs in all suits pend- 
ing in the United States courts and elsewhere afi:'ecting the rights 
and interests of the Chickasaws, except such expenses as are pay- 
able out of the funds provided for payment of expenses before 
the Dawes Commission and the Interior Department in citizenship 
matters, clerical assistance and other expenses in copying records 
of the United States court for the central and southern districts 
of the Indian Territory and of the Dawes Commission for use be- 
fore the Choctaw and Chickasaw citizenship court, expenses of 
members of firm at Washington and elsewhere, and expenses in 
connection with negotiation and ratification of supplementary 
agreement and all other usual and necessary expenses incurred $6, 865. 00 

The above amount is correct as stated. 

Mansfield, McMurray & Cornish. 



EXPENSE ACCOUNT OF MANSFIELD, M MURRAY & CORNISH. 

In protecting the interests of the nation in all matters that have arisen, other 
than citizenship, from October 1, 1903. to July 25, 1904, under the act of the leg- 
islature of the Chickasaw Nation, approved October 26. 1900. 



42 INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET Ali. 

In the various suits and proceedings arising in and pending before tlie 
United States courts in Indian Territory, involving tribal timber, 
taxes, and lands sought to be condemned by railway companies for 
rights of way, station grounds, water stations, and other railway 
purposes; in various matters pending before the Commission to 
the Five Civilized Tribes, the United States Indian agent, the 
United States Indian inspector, the Commissioner of Indian Af- 
fairs, the Secretary of the Interior, and the Congress of the United 
States, involving the rights and interests of the Chickasaws; in 
expenses of members of firm and assistants to and from Washing- 
ton in connection with these and other matters ; clerical assistance, 
traveling expenses, postage, stationery, telegraph and telephone 
expenses, and all other miscellaneous expenses chargeable under 
said act $3, 879. 45 

The above account Is correct. 

Mansfield, McMurray & Coenish. 



SALARY ACCOUNT OF MANSFIELD, il MURRAY & CORNISH. 

As citizenship attorneys of the Chickasaw Nation, under the act of the legisla- 
ture of the Chickasaw Nation approved September 20, 1899; 

July 20, 1904. To amount due as citizenship attorneys, at the rate of 

$5,000 per annum, from January 20, 1904, to July 20, 1904 $2, 500. 00 



I now submit a copy of one statement of work performed as general 
attorneys, amount charged, etc., to show that they were either em- 
ployed at a salary of $5,000 per annum without authority of law or, 
if the charges were made for services performed, then I can prove that 
a great deal of the services charged for were never rendered at all : 

EXPENSE ACCOUNT OF MANSFIELD, M'MURRAY & CORNISH GENERAL CONTINGENT. 

[From October 18, 1902, to March 30, 1903.] 

Account of expenses incurred by Mansfield, MclNIurray & Cornish, under the 
direction of th(^ governor of the Chickasaw Nation, under the provisions of the 
act of the legislature of the Chickasaw Nation approved October 26, 1900, in 
protecting the interests of the Chickasaw Nation, as follows : 

Traveling expenses, court costs, and other usual and necessary expenses In 
suits and proceedings disposed of and pending in the United States courts in 
the Indian Territory and elsewhere, as follows : 

City of Ardmore v. Choctaw and Chickasaw nations, and city of 
South McAlester v. Choctaw and Chickasaw nations to condemn 
lands of the tribes for waterworks ; United States v. Choctaw and 
Chickasaw nations, in Ardmore court, and The United States v. 
Choctaw and Chickasaw nations in South McAlester court, to con- 
demn town lots for use as sites for United States jails ; incorpo- 
rated town of Spiro v. Choctaw and Chickasaw nations, in Poteau 
court to condemn lands for waterworks ; Thompson v. Morgan, in 
court of appeals at South McAlester, upon appeal from the United 
States court at Pauls Valley ; Choctaw and Chickasaw nations v. 
McKenna and Page, in court of appeals, at South McAlester, in- 
volving the validity of the act of Congress authorizing the con- 
demnation of lands of the Choctaws and Chicasaws, without com- 
pensation for turnpikes and toll bridges; Choctaw and Chickasaw 
nations v. Fort Smith and Western Railway Company, in United 
States court at South McAlester, to compel such company to make 
adequate compensation for right of way ; Kansas City Southern 
Railway Company v. St. Louis and San Francisco Railway Com- 
pany and the Choctaw and Chickasaw nations, in Poteau court, to 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 43 

(xmdeinn lands for reservoirs at Potean ; expenses incurred in 
making settlement with the Enid and Anadarko Railway Company 
for right of way ; Chicago, Rock Island and Pacific Railway Com- 
pany for station grounds at Chickasha, Duncan, and other points ; 
St. Louis and San Francisco Railway ('ompayv for station grounds 
at Francis, Ada, Ruff. Skullen, Mill Creek, Randoli)h, ' Madill, 
Helen, and Platter ; St. Louis, San Francisco and New Orleans 
Railway Company for station grounds at Hugo, Dnrant, Madill, 
and Ardmore : Missouri. Kansas and Texa,s Railway Company for 
lauds for reservoir at Colgate; Gulf, Colorado and Santa Fe Rail- 
way Company for lands for station grounds and reservoirs at 
Purcell, Wynuewood, Marietta, and Bob ; Choctaw, Oklahoma and 
Gulf Railroad Company for lands for reservoirs at Haileyville and 
Wapanucka, and for station grounds at Calvin, Krebs, Haileyville, 
Herbert, Carlo, and Milburn ; Choctaw, Oklahoma and Gulf Rail- 
road Company for right of way of Haileyville and Ardmore 
branch; Missouri, Kansas and Texas Railway Company for right 
of way for Colgate and Oklahoma City line; expenses incurred by 
George A. Mansfield, J. i\ McMurray, and Melven Cornish, to and 
from, and at, Washington, in connection with the matter of the 
per capita payment for $40 per capita to the Chickasaws, enforce- 
" ment of the laws of the United States regulating trade and inter- 
coui'se with tlie Indian tribes, under the act of the legislature of 
the Chickasaw Nation, providing that the tribal taxes of the Chick- 
asaw Nation shall be collected under the direction of the Secretary 
of the Interior and other matters before the Department of the 
Interior and the Congress of the United States, affecting the inter- 
ests of the Chickasaw Nation; and expenses incurred for clericiil 
assistance in office and other places, postage, stationerv. telegraph. 
and telephone bills $2, 388. 55 

The above account is correct as stated. 

Melven Cornish. 

Your attention is directed to the first four items of this account, all 
of which were agreed upon before condemnation suits were brought, 
the same being only to perfect title with no contest. 

United States r. Choctaw and Chickasaw Xations was to condemn 
a town lot for jail site. The Choctaw and Chickasaw nations were 
joined as defendants to remove any possible cloud to title; appear- 
ance was entered by letter, after said defendants had been paid in 
full, to the Indian agent, as required by law. In many instances the 
condemnation of lands for railroads were settled in the same way, 
the suits being brought as friendly ones to remove any possible cloud 
to title. 

Your attention is invited to that portion of the account which says, 
" Expenses of George A. Mansfield, J. F. McMurray, and Melvin 
Cornish to and from and at Washington, in connection with the matter 
of the per capita payment of $40," etc. This item is for expenses in- 
curred in connection with incompetent fund, above referred to, and 
where they were to receive an unauthorized fee of $15,000. Mr. Rus- 
sell heard them state that they were only to receive expenses in event 
of failure to secure the legislation. 

It is useless to go further into details. 

This account was approved by Moseley, who became governor in 
August. 1!)02, for two years, when Johnston was again elected. 

The evidence shows' that these attorneys, and whoever happened 
to be governor, had the entire unlimited control of the finances of the 
Chickasaw Nation from October, 1900, and expended money on any 
pretext for any purpose they saw fit. Mr. Ward, who had been 
treasurer, testified that he had turned over to Governor Johnston 



44 INDICTMENTS FOUND AGAINST D. H, JOHNSTON ET AL. 

about thirty-five or forty checks that slioiiid have gone to Mansfield, 
McMiirray"& Cornish. 

Before 1900 there Avas never a woid of suspicion against the offi- 
cials of the Chickasaw Nation. Tlieir revenues about covered their 
expenses; but although their revenues were increased -in many ways, 
including coal royalties, even their expenses for operating their 
schools had not been paid until Congi-ess last winter appropriated 
something over $800,000 to pay oH' tliis indebtedness. That there has 
been an extravagant misuse of funds there can hardh^ be any question. 

When I was called to Washington in August I was kept there about 
nine days, as it later appeared, waiting for the return of Mr. McMur- 
ray, who had gone for his books and other evidence to make explana- 
tions of the charges in the indictment. He came with Mr. Mansfield, 
but brought nothing, claiming to Mr. Russell that their books were 
kept under the supervision of Mr. Cornish, who was then in Colorado. 
It was then agreed that they would return in September with Mr. 
Cornish and the books. They came, but brought no books, stating 
then that they nerer kept any books at all. Not the slightest mem- 
oranda was ever exhibited in my presence to explain anything. What 
Mr. Russell saw and heard to cause him to report '' sufficient facts 
were produced to show an apparent case, but it needed only an expla- 
nation and the production of some documentary evidence to make it 
fall to pieces " I can not srj. The defendants did tell their story, but 
nothing was shown to support their statement that I saw. I would 
be pleased to see such documents, because my hope has alwa3^s been, 
for many reasons, that they could explain these matters away. 

Again, Mr. Russell says : 

It was shown that one of the warrants had heen made out payable to Gov- 
ernor Johnston himself, and from this fact it was evidently inferred that this 
was a part of the spoils. 

Mr. Russell had access to, and stated he read, the evidence taken 
before the grand jury. He must know Governor Johnston denied 
drawing a $2,700 warrant which, if due anyone, should have gone to 
Mansfield, McMurray & Cornish. On the next day after Mr. Ward 
had testified he came before the grand jury and admitted he got the 
warrant, and exj^lained that he drew it so as to have monej^ on hand 
when the attorneys needed it. In Washington, for the first time, these 
attorneys stated that was a mistake that the governor took the war- 
rant, because he had already advanced them money out of his own 
funds. Mr. Ward, the treasurer, testified : 

I think the warrant was issned. and Mansfield, McMniray & (^Ornish indorse<l 
the warrant, and I wonld give the cliecl< to Governor Johnston. 

Question. Did he ever get any other checks there payable to Mansfield, Mc- 
Murray & Cornish? 

Answer. I don't remember; I think he did, though. * * * j^ ^.jjg ^^ gQ^. 
siderable amount. I take it there were possibly thirty or forty all the time L 
was treasurer. I don't think it was less than that. 

"WTiat explanation has been offered for Governor Johnston draw- 
ing checks that should have gone to Mansfield. McMurray & Cornish 
on itemized accounts approved by himself? 

The statement was made that the expense account was charged 
equally to the Choctaw and Chickasaw nations, but not an account 
against the Choctaws was ever shown, although I requested it. Mr, 
Russell said that he could not see that it was " vital." From what 



««, •« 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL, 45 

law or aiithorit}' did they charge the Chickasaws one-half of the ex- 
penses incurred for the Choctaws. The Chickasaws own an un- 
divided one-fourth interest in the lands, but t/hey each maintain a 
separate form of government and divide the revenues from the soil in 
the proportion of 3 to 1. Each employs and pays its attorney out of 
its own funds. If these attorneys converted $25,000 of Chickasaw 
money to pay their alleged expenses when only $10,000 could be 
legally taken, does not that constitute an offense? And if the gover- 
nor approved such an account, not itemized, only as shown, knowing 
that it was illegal, was he not acting with them to take money from 
the Chickasaws wrongfully? Therefore was it not relevant to know 
what amount of these alleged expenses were paid by the Chickasaw 
treasury ? 

Mr. Russeirs reference to the large fee collected by these attor- 
neys is not pertinent to the case, because no man on the grand jury 
was an Indian by blood: and I undertake to say not a member cared 
what fees were paid them. Besides, it was not a subject of investi- 
gation, directly or indirectly. The tax question could not have in- 
fluenced the jury, because the only trouble ever had in this district 
over that subject was a small matter of litigation to test its validity, 
and in nearly every instance I personally appeared for the Govern- 
ment. These are subterfuges of the defendants. If their statements, 
supported by nothing, to my knowledge, are to be taken as the correct 
version of the matter, then I concur in the recommendations made. 

Again, Mr. Russell refers to the fact that a " certain former officer 
of the tribe brought suit, etc., and practically the same charges were 
made against these attorneys, and this same man appeared before 
the grand jur3^" Is it contended that this matter was investigated 
in that civil suit ? Was it not decided upon questions of law ? This 
officer, Mr. McLish, had nothing to do with this investigation, be- 
cause all the matters he knew of were barred by the statute of 
limitation. He Avas brought before the grand jury to contradict a 
statement made by Ward with reference to Chickasaw school war- 
rants, a question not involved in this case. This man did not know 
an investigation was pending until I introduced him to Mr. Jenkins, 
thinking he could give some information that would throw light 
upon the case. 

Again, Mr. Russell states that " the contest on the right to enroll- 
ment of citizens and the consequent right to receive allotment en- 
gendered much bitterness against these attorneys." The truth is 
from the date of employment of these attorneys less than seven him- 
dred applicants for citizenship in the Chickasaw Nation had their 
rights contested, and this number included women and children. The 
district has a population of at least 250,000, and none of these appli- 
cants composed the grand jury. Mr. Russell seems to be confused 
about the relations existing between the Choctaw and Chickasaw 
nations. Thej^ are as distinct as any of the other tribes. Each has 
its separate funds, employs its own counsel, and defrays its own ex- 
penses. No Choctaw can hold office or vote in the Chickasaw Nation, 
although he may live there. There were about 2,000 contested cases 
of citizenship in the Choctaw Nation I am informed. These attorneys 
stated that the expense of litigation and of citizenship matters was 
charged equally. By what authority was this done? Why charge 
the Chickasaws one-half of expenses by taking it from moneys they 



4(3 



INDICTMENTS FOUND AGAINST D. H. JOHNSTON ET AL. 



had before thej^ ever came to this country, when the successful result 
of the litigation would only give them one-fourth? This was never 
done before, and is unauthorized bj'^ any law within my Icnowledge, 
conceding that the expense was incurred. 

These Indians are w^ards of the Government, and under its pro- 
tecting care will " sink or swim " as the laws are enforced. 

I have not the slightest feeling in this case except the enforcement 
of the law without fear or favor. Already the people at large feel 
that there is one law and procedure for the rich and influential and 
another for the poor and friendless. 

I respectfully suggest that an order directing the dismissal of this 
case will do more to impede the enforcement of the law in this country 
than anything I can imagine. 

I neither hope nor expect to prosecute this case, because my term of 
office expires before it can possibly be reached for trial. Therefore I 
trust my apparent interest will receive no misconstruction. 
Very respectfully, 

Wm. B. Johnson, 
United States A ttomey. 

The Attorney-General, 

Washmgton, D. C. 



List of the members of the grand jury, May term. 1905, at ArOinore. 



Name. 


Residence. 


Occupation. 


0. P. Van Denberg, foreman . _ 


Ardmore - 


Lumber merchant. 


Bill Cornish „ 


Cornish - - 




Joe Williford 

0. B. Love 

Scott Worthy ._ - „ -.- _ 


Woodford 

Springer 

Baum - 


Farmer and stockman. 
Farmer (old soldier). 


Witt Carroll-— - _ -— .. 








Provence 

Ardmore - 


Do. 








._.do 




W. H. Blakemore ^- 

W. 0. Dustin 

J. A. Bivens 

T. L. Smith _ 


do 

do 

do 

do . 


Laundryman. 

Dry goods merchant. 

President City National Bank. 


T. 0. Lebus 

L. M. Frame 

Charles Mihier 


do 

do 

do 


Blacksmith. 

Druggist. 

Barber. 



o 








O 'o . . * A 






.^ ..... -^r- 




.^^^ y"'^ '""^ 



c 



0' 



>P^<^. 



^ 












a"? DOEES BROS. ^ 

•> LIBRAnV BINDINCS ^^ A^ * 

ST. AUGUSTINE <tV "^ . ^^^^ '^ ■<^ 



^•^"-A. ' ^,, ^ 



No v<> 



